Pierucci v. Pierucci

2014 UT App 163
_________________________________________________________
THE U TAH COURT OF A PPEALS
A RMANDO P IERUCCI,
Plaintiff and Appellant,
v.
MARCHETA P IERUCCI
Defendant and Appellee.
Opinion
No. 20130379‐CA
Filed July 10, 2014
Seventh District Court, Price Department
The Honorable Douglas B. Thomas
No. 120700041
Justin D. Heideman, Attorney for Appellant
Don M. Torgerson and Mandie J. Torgerson,
Attorneys for Appellee
J UDGE STEPHEN L. R OTH authored this Opinion, in which J UDGES
G REGORY K. ORME and J. FREDERIC VOROS J R . concurred.
ROTH, Judge:
¶1 	The 	district 	court 	dismissed 	Armando 	Pierucci’s
complaint, 	concluding 	that 	his 	claims 	were 	barred 	by 	res
judicata and the statute of limitations and that he had not
demonstrated that he had standing as a real party in interest to
assert them. Armando appeals the dismissal, and we affirm on
the ground that he has not demonstrated that he is a real party in
interest. Our decision to affirm, however, does not preclude
Armando from seeking any remedy suggested by rule 17 of the
Utah Rules of Civil Procedure to reinstate the proceedings.

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BACKGROUND
¶2 	In 	1949, 	two 	brothers, 	Anselmo 	Pierucci 	and 	Victor
Pierucci, each inherited an undivided one‐half interest in the
mineral rights to property in Carbon County. 1 When Anselmo
died in 1984, he left a will transferring his one‐half interest to
Armando, who was one of Victor’s sons. A 1988 quitclaim deed
recorded in Carbon County indicates that Victor transferred his
one‐half 	interest 	to 	his 	daughter‐in‐law, 	Marcheta 	Pierucci.2
After 	Victor 	died, 	Marcheta 	claimed 	an 	undivided 	one‐half
interest in the mineral rights.
¶3 	Armando 	originally 	sued 	Marcheta 	in 	2010, 	alleging
breach of contract and other equitable claims based on the 1988
quitclaim deed transferring Victor’s mineral rights interest to
Marcheta. In that case, Armando sought to invalidate that deed
and have title to the mineral interest devolve to him. Near the
end of the discovery period, Armando engaged a handwriting
expert, 	who 	concluded 	that 	the 	deed 	was 	“probably 	not”
executed by Victor. Based on the expert’s report, Armando
moved to amend the complaint to add a claim of fraud. The
district court denied his motion on the basis that “the new claim
is significantly different from those claims previously pleaded.”
The court disposed of Armando’s other causes of action by
motion. Armando did not appeal from any of the rulings in the
2010 litigation, including the denial of the motion to amend.
1. Because all the principal figures in this matter have the same
surname, 	we 	refer 	to 	them 	by 	their 	first 	names 	to 	avoid
confusion.
2. The 1988 deed actually transfers Victor’s one‐half mineral
rights interest to Marcheta and her husband, John Pierucci, who
was Victor’s son. John has died, however, and for simplicity, we
will refer only to Marcheta as the transferee in the 1988 quitclaim
deed.

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¶4 	In May 2012, Armando filed a new complaint against
Marcheta, initiating the present case. This time he sought a
declaratory judgment invalidating the deed due to fraud based
on forgery. In the complaint, Armando alleged that Victor died
intestate; 	that 	Victor’s 	other 	immediate 	family 	members,
including Victor’s wife and his son, John, were also deceased;
and that Armando, as Victor’s son, was Victor’s heir. Armando
asserted that although there is a 1988 deed transferring Victor’s
one‐half interest in the mineral rights to Marcheta, Armando had
reason to 	believe that the 	deed was a forgery. He further
asserted that he “did not know that the Deed had been forged
until he obtained the [handwriting] expert analysis” in August
2011. Marcheta responded to the complaint with a rule 12(b)(6)
motion 	to 	dismiss. 	Utah 	R. 	Civ. 	P. 	12(b)(6) 	(allowing 	the
defendant to move for dismissal on the basis that the plaintiff
has “fail[ed] to state a claim upon which relief can be granted”).
She asserted three bases for dismissal. First, she contended that
Armando lacked standing to invalidate the deed or assert fraud
because he was not a real party in interest. Second, she argued
that 	Armando’s 	claims 	were barred 	by 	the 	doctrine 	of 	res
judicata because they arose from the same operative facts as the
contract and equitable claims he asserted in the 2010 complaint.
Finally, Marcheta argued that the claims were barred by the
seven‐year statute of limitations because Victor transferred the
mineral rights to Marcheta in 1988, twenty‐four years earlier,
and the 1988 recording of the deed put Victor on constructive
notice of the conveyance so as to preclude any tolling of the
statute of limitations period. The district court agreed that each
of the three grounds precluded Armando’s claim and dismissed
the complaint.
ISSUES AND STANDARD OF REVIEW
¶5 	Armando challenges the three bases for the district court’s
decision to dismiss his 2012 complaint. He asserts that his claim
was not barred by res judicata because, as the district court

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recognized in the first case, “the forgery claim . . . differed
significantly” from his contract and equitable claims. Armando
also 	claims 	that 	the 	discovery 	rule 	tolled 	the 	statute 	of
limitations on his fraud claim until he discovered or reasonably
should have discovered the facts that he alleges constitute fraud.
Finally, he contends that he is a legal heir of Victor and thus was
a real party in interest with standing to bring a claim regarding
Victor’s property.
¶6 	“The propriety of a trial court’s decision to grant . . . a
motion to dismiss under rule 12(b)(6) is a question of law that we
review for correctness.” Mackey v. Cannon, 2000 UT App 36, ¶ 9,
996 P.2d 1081 (citation and internal quotation marks omitted).
When reviewing the grant of such a motion, “we accept the
factual allegations in the complaint as true and interpret those
facts and all reasonable inferences drawn therefrom in a light
most favorable to the plaintiff as the nonmoving party.” 3 Russell
Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 3, 108 P.3d 741. All the
subsidiary issues likewise involve questions of law. See Gillmor v.
Family Link, LLC, 2012 UT 38, ¶ 9, 284 P.3d 622 (“Whether a claim
is barred by res judicata is a question of law that we review for
correctness.”); Colosimo v. Roman Catholic Bishop of Salt Lake City,
2007 UT 25, ¶ 11, 156 P.3d 806 (“The applicability of a statute of
limitations and . . . the discovery rule are questions of law, which
we review for correctness.” (omission in original) (citation and
internal quotation marks omitted)); Anderson v. Dean Witter
Reynolds, 	Inc., 	841 	P.2d 	742, 	744–45 	(Utah 	Ct. 	App. 	1992)
(reviewing for correctness the propriety of the district court’s
dismissal on the basis that the beneficiary was not a real party in
interest).
3. As we must, we accept the facts alleged as true for purposes of
reviewing the dismissal. As a consequence, our factual analysis
should not “preclude[ the district court] from making different
findings of fact or conclusions of law” as the facts may develop,
should the case go forward. See Wilson v. IHC Hosps., Inc., 2012
UT 43, ¶ 79, 289 P.3d 369.

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ANALYSIS
I. Res Judicata
¶7 	The district court dismissed Armando’s claim on the basis
that it was barred by the claim preclusion branch of res judicata.
“[C]laim preclusion corresponds to causes of action and bars a
party from prosecuting in a subsequent action a claim that has
been fully litigated previously.” State v. Sommerville, 2013 UT
App 40, ¶ 30, 297 P.3d 665 (alteration in original) (citations and
internal quotation marks omitted). A claim is precluded if “the
parties 	or 	their 	privies” 	have 	been 	involved 	in 	previous
litigation, “the claim that is alleged to be barred [was] presented
in the first suit or . . . could and should have been raised in the
first action,” and “the first suit . . . resulted in a final judgment
on the merits.” Gillmor, 2012 UT 38, ¶ 10 (citation and internal
quotation marks omitted). “The second prong is often the most
contested element,” id., and that is the case here, as Armando
readily concedes that both cases involved the same parties and
that 	the 	first 	action 	was 	resolved 	on 	the 	merits. 	Armando
disputes, however, that his forgery claim could have or should
have been raised in the 2010 complaint. First, he argues, the
claim arises from a different set of facts and evidence of a
different character than the breach of contract and equitable
claims he asserted in the first suit. Second, Armando contends
that he could not have brought the claim in the first action
because the district court expressly prohibited him from doing
so by denying his motion to amend on the basis that “the new
claim is significantly different from those claims previously
pleaded.”
¶8 	In Gillmor v. Family Link, LLC, 2012 UT 38, 284 P.3d 622,
our supreme court adopted the transactional test for determining
if a claim is precluded. Id. ¶¶ 12–13. “Under the transactional
test, ‘[c]laims or causes of action are the same as those brought or
that could have been brought in the first action if they arise from
the same operative facts, or in other words from the same
transaction.’” Id. ¶ 14 (alteration in original) (citation omitted).

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Thus, in considering whether claim preclusion applies, a court
should assess (1) whether the claims possess a “common nucleus
of operative facts,” (2) “whether the facts are related in time,
space, origin, or motivation” so as to (3) make “a convenient trial
unit” because they depend on evidence of a similar kind or
character and (4) “whether their treatment as a unit conforms to
the parties’ expectations.” Id. (citations and internal quotation
marks omitted).
¶9 	Applying these factors, the Gillmor court concluded that
Gillmor’s causes of action aimed at establishing a public right of
way (the second suit) were not precluded by her earlier lawsuit
that asserted a private easement right over the same property
(the first suit). Id. ¶¶ 17–22. In particular, the court noted that
Gillmor’s second suit involved facts relating to the usage of the
road by members of the public dating back to the 1800s, whereas
the first suit only concerned the Gillmors’ own use since they
acquired the property forty years before. Id. ¶¶ 17–18. Thus, the
causes of action did not arise out of a common nucleus of
operative facts. Id. ¶ 22. The supreme court also observed that
the claims for relief in the second suit focused on public rights
and public use, rather than private rights and private use,
making them “legally [as well as] factually distinct from the
claims advanced” in the first suit. Id. ¶ 19. Therefore, the prior
private easement claim and the current highway‐by‐public use
and public condemnation claims would not make a convenient
trial unit because they did not involve a “significant overlap
between the evidence necessary to establish the claims.” Id.
¶¶ 19, 22. Finally, the court explained that although both suits
involved Gillmor’s access to the road, each suit sought a separate
remedy—private access in the first suit versus public access in
the second suit—and the parties reasonably would expect that
an action to provide broader access to the public would be
separate from litigation intended to resolve the rights to use of
the road as between two private parties. Id. ¶¶ 20–21. Therefore,
the supreme court concluded, the causes of action in the second
suit did “not arise from the same transaction” as the first suit. Id.
¶ 23.

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¶10 	We 	reach 	the 	same 	conclusion 	here. 	Although 	both
Armando’s contract and equitable claims in the 2010 complaint
and his fraud claim in the current suit aim to invalidate the deed,
they arise from a separate set of operative facts. The 2010 claims
were based on allegations of 	a decades‐old agreement and
understanding that if no Pierucci heir survived to take the one‐
half 	interest 	in 	the 	mineral 	rights 	transferred 	to 	John 	and
Marcheta, then the property was to be transferred to Armando
upon John’s death. The fraud claim in the present case, however,
arose from Armando’s alleged discovery in 2011 that the 1988
deed was not actually a legitimate transfer by Victor to John and
Marcheta but rather was a forgery by Marcheta, John, or both of
them.
¶11 	In addition, the claims are legally distinct. To establish a
breach of contract claim, one must show the existence of a
contract between the plaintiff and defendant, performance by
the plaintiff, non‐performance by the defendant, and damages to
the plaintiff. Bair v. Axiom Design, LLC, 2001 UT 20, ¶ 14, 20 P.3d
388. A fraud claim, on the other hand, requires the plaintiff to
demonstrate
(1) that a representation was made (2) concerning a
presently existing material fact (3) which was false
and (4) which the representor either (a) knew to be
false or (b) made recklessly, knowing that there
was insufficient knowledge upon which to base
such 	a 	representation, 	(5) 	for 	the 	purpose 	of
inducing the other party to act upon it and (6) that
the other party, acting reasonably and in ignorance
of its falsity, (7) did in fact rely upon it (8) and was
thereby induced to act (9) to that party’s injury and
damage.
Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 16, 70 P.3d 35.
Thus, “there is no significant overlap between the evidence
necessary to establish the claims” and the two claims do not
form a convenient trial unit. See Gillmor, 2012 UT 38, ¶ 22.

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Indeed, the district court itself recognized the factual and legal
distinctions between the claims, declining to allow Armando to
amend his original complaint to add a claim for fraud because
“the 	new 	claim 	is 	significantly 	different 	from 	those 	claims
previously pleaded.”4 For these reasons, the fraud claim need
not have been “raised in the first action” and the second prong
of the claim preclusion test is not satisfied. See id. ¶ 10.
¶12 	Armando’s fraud claim is therefore not precluded by res
judicata. See id. (explaining that all three requirements must be
present to preclude a claim).
II. Statute of Limitations
¶13 	The district court also concluded that Armando’s claim
should 	be 	dismissed 	because 	the 	seven‐year 	statute 	of
limitations applicable to claims based upon title to real property
had run. Armando contends that this was error because his
claim is for fraud, and the statute of limitations period for fraud
does not begin to run until after the plaintiff has discovered the
fraud, a discovery he alleges he did not make until August 2011.
Marcheta urges us to uphold the district court’s conclusion that
the statute of limitations period had expired. Alternatively, she
asserts that the three‐year fraud statute of limitations expired by
1991 	because 	Victor 	necessarily 	discovered 	or 	should 	have
discovered 	any 	fraud 	in 	the 	1988 	deed 	upon 	its 	recording
because 	a 	recorded 	deed 	imparts 	constructive 	notice 	to 	all
persons of its contents.
4. In his 2010 complaint, Armando also asserted claims for
equitable 	estoppel 	and 	unjust 	enrichment 	and 	sought 	the
imposition of a constructive trust. Like breach of contract, these
claims are legally distinct from a fraud claim and depend upon
proof of a separate set of facts. See Salt Lake City Corp. v. Big Ditch
Irrigation Co., 2011 UT 33, ¶ 41, 258 P.3d 539 (setting out the
elements of equitable estoppel); Desert Miriah, Inc. v. B & L Auto,
Inc., 2000 UT 83, ¶ 13, 12 P.3d 580 (setting out the elements of
unjust enrichment).

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¶14 	We first address whether Armando has alleged facts to
support his contention that the statute of limitations period on
the forgery claim had not expired because he did not discover
the fraud until August 2011. We then turn to the issue of
whether 	Victor’s 	constructive 	notice 	of 	the 	deed 	in 	1988
precludes Armando’s reliance on the discovery rule to establish
a start date for the limitations period in 2011.
A. 	Armando’s Allegation that He 	Did Not Discover the
Forgery Until August 2011 Is Sufficient To Withstand a
Motion to Dismiss.
¶15 	Generally,
[a]n 	action 	. . . 	based 	upon 	title 	to 	the 	[real]
property . . . shall be brought: (1) not later than
seven years after the act on which it is based; and
(2) by the ancestor, predecessor, or grantor of the
person who owned or possessed the property for
seven years before the act in Subsection (1) took
place.
Utah Code Ann. § 78B‐2‐207 (LexisNexis 2012). However, when
the claim arises out of fraud, even if it concerns real property,
“the cause of action does not accrue until the discovery by the
aggrieved party of the facts constituting the fraud.” Id. § 78B‐2‐
305(3). The aggrieved party 	must then commence 	litigation
within three years of the date of discovery. Id.; Russell Packard
Dev., Inc. v. Carson, 2005 UT 14, ¶ 21, 108 P.3d 741 (noting that
the three‐year statute of limitations for a fraud claim does not
begin to run until “a plaintiff either discovered or should have
discovered his or her cause of action”).
¶16 	In the May 2012 complaint, Armando alleged that he did
not discover that the 1988 deed was forged until August 2011.
Although 	Armando 	does 	not 	expand 	upon 	that 	general
statement, we must not only accept it as true, see Russell Packard,
2005 UT 14, ¶ 3, we must also conclude that it is “sufficient to get

Pierucci v. Pierucci
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him past a [motion to dismiss],” Nunnelly v. First Fed. Bldg. &
Loan Ass’n of Ogden, 154 P.2d 620, 633 (Utah 1944). Utah has
adopted a liberal notice pleading standard, meaning that a
complaint need only contain “a short and plain statement” of
facts that “give[s] the defendant fair notice of the nature and
basis or grounds of the claim and a general indication of the type
of litigation involved.” Canfield v. Layton City, 2005 UT 60, ¶ 14,
122 P.3d 622 (citations and internal quotation marks omitted).
Furthermore, a complaint need not anticipate any of a variety of
affirmative defenses, including the statute of limitations, which a
defendant must elect to raise. Nunnelly, 154 P.2d at 632; see also
Utah R. Civ. P. 8(c) (listing the statute of limitations as an
affirmative defense that the defendant must raise in a responsive
pleading). “Otherwise, the complaint might be burdened with
many allegations set forth solely for the purpose of anticipating a
defense which might never be raised.” Nunnelly, 154 P.2d at 632.
Accordingly, “it is only necessary for [a plaintiff] to allege in the
terms of the statute that the fraud was not discovered until a
date within the period of limitations.” Id. Because Armando has
made such an allegation, his complaint is sufficient to withstand
a motion to dismiss premised on the theory that the statute of
limitations had expired—unless the recording of the 1988 deed
itself conveyed notice of the fraud.5
5. The statute setting forth the discovery rule only mentions “the
discovery by the aggrieved party of the facts constituting the
fraud,” 	Utah 	Code 	Ann. 	§ 78B‐2‐305(3) 	(LexisNexis 	2012)
(emphasis added), as a trigger for the running of the statute of
limitations. 	However, 	Utah 	courts 	have 	concluded 	that 	the
statute 	of 	limitations 	begins 	to 	run 	at 	the 	point 	when 	the
aggrieved party actually discovers the fraud or should have
discovered the fraud. See, e.g., Russell Packard Dev., Inc. v. Carson,
2005 UT 14, ¶ 21, 108 P.3d 741 (explaining that the statutory
discovery rule tolls the running of the statute of limitations until
“a plaintiff either discovered or should have discovered his or
her cause of action”); Booth v. Attorneys’ Title Guar. Fund, Inc.,
2001 UT 13, ¶ 43, 20 P.3d 319 (“Discovery by the aggrieved party
of the facts constituting an alleged fraud is measured from the

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B. 	The 1988 Recording of the Deed Did Not Give Notice of
the Forgery.
¶17 	A recorded deed generally provides notice of its contents
to all the world: “Each document executed, acknowledged, and
certified, in the manner prescribed by this title, . . . from the time
of recording with the appropriate county recorder, impart[s]
notice to all persons of their contents.” Utah Code Ann. § 57‐3‐
102(1) 	(LexisNexis 	2010). 	This 	notice 	may 	be 	actual 	or
constructive. A person has actual notice when he or she has been
informed 	of 	the 	recorded 	document’s 	contents. 	Black’s 	Law
Dictionary 1164 (9th ed. 2009). Armando’s complaint is sufficient
to establish for purposes of the motion to dismiss that neither he
nor Victor had actual notice of the 1988 deed transferring the
mineral rights to Marcheta.
¶18 	Constructive 	notice 	is 	“both 	(1) 	record 	notice 	which
results from a record or which is imputed by the recording
statutes, and (2) inquiry notice which is presumed because of the
fact that a person has knowledge of certain facts which should
impart to him, or lead him to, knowledge of the ultimate fact.”
Federal Deposit Ins. Corp. v. Taylor, 2011 UT App 416, ¶ 36, 267
P.3d 	949 	(citation 	and 	internal 	quotation 	marks 	omitted).
Marcheta contends that because Victor was on constructive
notice of the deed transferring ownership of the mineral rights to
Marcheta 	by 	operation 	of 	the 	recording 	statutes, 	Armando
cannot claim that the fraud was not discovered until 2011.
¶19 	The Utah Supreme Court rejected this very contention in
Rasmussen 	v. 	Olsen, 	583 	P.2d 	50 	(Utah 	1978). 	There, 	the
Rasmussens sold Olsen some real property in 1959. Id. at 51. In
the written purchase agreement, the parties did not discuss who
would own the mineral rights associated with the property, but
the Rasmussens ultimately conveyed the property to Olsen in a
deed specifically reserving the mineral rights for themselves. Id.
time 	the 	fraud 	was 	actually 	known 	or 	could 	have 	been
discovered through the exercise of reasonable diligence.”).

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Without the Rasmussens’ knowledge, Olsen “altered the deed by
obliterating the paragraph . . . reserving the mineral rights” and
then “recorded the altered deed.” Id. The Rasmussens did not
discover the alteration until late 1970 or early 1971, at which time
they sued to quiet their title to the mineral rights. Id. Olsen
asserted 	that 	“since 	he 	recorded 	the 	deed 	as 	altered, 	the
recordation thereof gave notice to all the world that he claimed
the mineral rights in the land, and therefore, the Rasmussens can
do nothing because of the [running of the] statute of limitations.”
Id. at 52. The supreme court disagreed, concluding that “[t]he
recording of a forged deed gives no notice to the world or to
anybody within it of the contents thereof” because “[s]uch a
deed is void.” Id. at 52–53. The only effect of the altered deed’s
recordation was to “cloud the title of the Rasmussens to their
mineral 	rights.” 	Id. at 	53. 	It 	did 	not 	trigger 	the 	statute 	of
limitations so as to bar the Rasmussens’ 1971 complaint for fraud
after they discovered the alteration. Id.
¶20 	Rasmussen’s approach aligns well with the purposes of the
recording statutes: to “impede fraud, to foster the alienability of
real property, and to provide predictability and integrity in real
estate transactions,” Federal Deposit Ins. Corp., 2011 UT App 416,
¶ 23 (citation and internal quotation marks omitted). Adoption
of Marcheta’s constructive notice argument would permit a
forged deed to overcome the lawful owner’s title in cases, such
as is alleged here, where the fraud is discovered after the
passage of the statute of limitations. Adopting that view would
not advance the purposes of impeding fraud and securing title.
Accordingly, we conclude that Victor did not have constructive
notice of the allegedly forged 1988 deed by virtue of its being
recorded.
¶21 	Because Armando alleged sufficient facts to support a
claim that he did not discover the fraud in the 1988 mineral
rights conveyance to Marcheta until 2011, we cannot affirm the
district court’s grant of the motion on this basis. Our ruling,
however, is limited to the facts as alleged in the complaint, and

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we express no opinion on the merits of Armando’s allegations
should further proceedings occur.
III. Real Party in Interest
¶22 	Finally, Armando contends that the district court erred in
dismissing his fraud claim on the basis that he did not have
standing as a real party in interest. Rule 17 of the Utah Rules of
Civil 	Procedure 	requires 	“[e]very 	[legal] 	action 	[to] 	be
prosecuted in the name of the real party in interest.” Utah R. Civ.
P. 17(a). The “purpose of this rule is to allow defendants the
right to have a cause of action prosecuted by the real party in
interest in order for the judgment to preclude any action on the
same demand by another.” Green v. Louder, 2001 UT 62, ¶ 43, 29
P.3d 638 (emphasis omitted).
¶23 	Armando claims that if the 1988 deed transferring the
one‐half interest in the mineral rights to Marcheta is in fact
invalid, as he contends, then the interest should have been part
of Victor’s estate. And he asserts that Victor’s heirs are the real
parties in interest to any claim that Victor’s estate might have to
the 	mineral 	interest. 	According 	to 	Armando, 	his 	complaint
contained sufficient factual allegations to establish his status as
an heir.
¶24 	Heirs are “persons, including the surviving spouse and
state, who are entitled under the statutes of intestate succession
to the property of a decedent.” Utah Code Ann. § 75‐1‐201(21)
(LexisNexis Supp. 2013). 6 The law governing intestate succession
provides, inter alia, that an estate of a decedent without a
will passes first to a surviving spouse, if there is one, then to
the decedent’s descendants per capita at each generation. Id.
6. The probate code has been amended since the time of Victor’s
death. Except where otherwise noted, the amendments do not
involve substantive changes, and we therefore cite the current
version for the reader’s convenience.

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§ 75‐2‐103(1)(a). 	Descendants 	are 	“all 	of 	[the 	decedent’s]
descendants of all generations,” including children. Id. § 75‐1‐
201(9); see also RandomHouse, Inc., Dictionary.com Unabridged,
http://dictionary.reference.com/browse/descendant 	(last 	visited
July 1, 2014) (defining descendant as “a person or animal that is
descended from a specific ancestor; an offspring”). Armando
alleged in his complaint that Victor was his father and that
Victor’s spouse is also deceased, making Armando an heir of
Victor’s estate.
¶25 	Armando’s presumed status as an heir,7 however, does
not conclusively resolve the question of whether he is a real
party in interest. A “real party in interest” is “[a] 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.” Black’s Law Dictionary 1232 (9th ed. 2009); accord
Industrial Comm’n v. Wasatch Grading Co., 14 P.2d 988, 991 (Utah
1932) (“One having the legal title to a cause of action is a real
party 	in 	interest.”). 	But 	only 	“[a]n 	executor, 	administrator,
guardian, bailee, trustee of an express trust, a party with whom
or in whose name a contract has made for the benefit of another,
or a party authorized by statute” can assert a claim on behalf of
7. To be declared an heir, one must request the probate court to
make a finding of heirship as part of a petition for adjudication
of intestacy made through formal testacy proceedings. Utah
Code Ann. § 75‐3‐402(3) & uniform law comments (LexisNexis
Supp. 2013). Armando has alleged facts that would support a
finding of heirship, and because we must accept all facts as
alleged as true at the motion to dismiss stage, we accept, for
purposes 	of 	reviewing 	the 	district 	court’s 	dismissal, 	that
Armando is an heir to Victor’s estate. Russell Packard Dev., Inc. v.
Carson, 2005 UT 14, ¶ 3, 108 P.3d 741. The complaint alleges that
John, 	Marcheta’s 	husband 	and 	Armando’s 	brother, 	is 	also
deceased, but there is no information on whether Victor has
other children still surviving. If there are, it makes no difference
to our analysis because Armando has sufficiently alleged that he
would be an heir, even if he is not the only one.

Pierucci v. Pierucci
20130379‐CA 	15 	2014 UT App 163
someone else. Utah R. Civ. P. 17(a). Because any claim to the
mineral rights belonged to Victor and passed to his estate upon
his death, we must determine who is authorized by rule or by
statute to assert the claim.
¶26 	Armando’s claim that heirs are the real parties in interest
to property within an intestate estate finds some support in In re
Cloward’s 	Estate, 	82 	P.2d 	336 	(Utah 	1938). 	There, 	the 	Utah
Supreme Court noted, “The property of a decedent passes to the
heirs (in whom the title vests at the death of the prior owner),
subject only to administration.” Id. at 342; see also Utah Code
Ann. § 75‐3‐101 (Michie 1993) (“[I]n the absence of testamentary
disposition,” the “real and personal property devolves . . . to [the
decedent’s] heirs.”).
¶27 	However, Marcheta asserts that since the adoption of the
Uniform Probate Code in 1975, Utah law has required claims
belonging to the estate of the decedent to be prosecuted by the
personal representative. To support her position, Marcheta cites
Utah Code section 75‐3‐708, which provides that a personal
representative “may maintain an action to recover possession of
property or to determine the title thereto,” Utah Code Ann. § 75‐
3‐708 (Michie 1993), and section 75‐3‐714, which authorizes the
personal representative to “prosecute or defend claims . . . for
the protection of the estate,” id. § 75‐3‐714(22). Armando is not,
and never was, the personal representative of Victor’s estate. 8
¶28 	The district court did not resolve this dispute. Indeed, the
court 	seemed 	to 	accept 	that 	either 	an 	heir 	or 	a 	personal
representative could commence litigation on behalf of an estate
but nevertheless granted Marcheta’s motion on the basis that
Armando had never “initiated proceedings to be declared a
legally‐recognized 	heir 	of 	Victor 	Pierucci’s 	estate.” 	Because
8. It appears that no probate proceedings for Victor’s estate ever
occurred, and as a consequence, no personal representative has
ever been appointed.

Pierucci v. Pierucci
20130379‐CA 	16 	2014 UT App 163
Armando has alleged facts that would support a finding that he
is an heir, even if he has never been formally declared to be one,
see Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 3, 108 P.3d
741, we move to the issue of whether an heir is a real party in
interest who may prosecute a decedent’s claim to real property.
Armando 	has 	not 	established 	that 	an 	heir 	meets 	the
requirements for a real party in interest under the circumstances
of this case.
¶29 	When a person dies without leaving a will, any interested
person may file, within three years of the decedent’s death, a
petition for an adjudication of intestacy to determine whether
the decedent died without a will and, if so, to identify the
decedent’s heirs for purposes of distributing the decedent’s
estate. Utah Code Ann. § 75‐3‐401(1); id. § 75‐3‐402(3) & uniform
law comments (LexisNexis Supp. 2013); id. § 75‐3‐107(1) (Michie
1993) (current version at id. (LexisNexis Supp. 2013)); see also id.
§ 75‐1‐201(14) (LexisNexis Supp. 2013) (defining estate as “the
property of the decedent . . . whose affairs are subject to [the
probate code] as originally constituted and as it exists from time
to time during administration”). As part of that process, the
petitioner 	may 	also 	seek 	the 	appointment 	of 	a 	personal
representative. 9 Id. §§ 75‐3‐402(1), ‐414 (Michie 1993). After three
years have elapsed from the date of death, “the presumption of
intestacy is final.” Utah Code Ann. § 75‐3‐107(3). The court
nonetheless retains jurisdiction “to handle all matters necessary
to distribute the decedent’s property.” Id. This includes the
authority 	to 	appoint 	a 	personal 	representative 	through 	the
9. The probate code sometimes refers to the appointment of an
administrator, 	rather 	than 	a 	personal 	representative, 	when
referring to an intestate estate. See, e.g., Utah Code Ann. § 75‐3‐
402(3) 	(LexisNexis 	Supp. 	2013). 	The 	term 	“‘[p]ersonal
representative’” is broadly defined to include an “executor,
administrator, 	successor 	personal 	representative, 	special
administrator, and persons who perform substantially the same
function 	under 	the 	law 	governing 	their 	status.” 	Id. 	§ 75‐1‐
201(36)(a).

Pierucci v. Pierucci
20130379‐CA 	17 	2014 UT App 163
commencement of testacy proceedings. In re Estate of Strand, 2012
UT App 144, ¶¶ 5–6, 281 P.3d 268.
¶30 	Appointment of a personal representative to administer
an intestate estate is not required. See Utah Title 75, ch. 3,
General 	Uniform 	Law 	Comments, 	Refs. 	& 	Annos. 	(“[A]n
adjudication 	of 	intestacy 	may 	occur 	without 	any 	attendant
requirement 	of 	appointment 	of 	a 	personal 	representative.”).
However, a personal representative, if appointed, acts as a
fiduciary to the estate’s heirs in settling and distributing the
decedent’s estate and is vested with the authority to sue and be
sued on behalf of the decedent’s estate. Utah Code Ann. § 75‐3‐
703 (LexisNexis Supp. 2013) (describing the general duties of a
personal representative and conferring “standing to sue and be
sued in the courts . . . [in the same capacity] as his decedent”); id.
§ 75‐3‐714(22) 	(Michie 	1993) 	(authorizing 	a 	personal
representative to “prosecute or defend claims or proceedings in
any jurisdiction for the protection of the estate”).
¶31 	Indeed, 	the 	probate 	code 	explicitly 	provides 	that
whenever there are claims to be asserted against an estate, a
personal representative must be appointed because the estate is
not a legal entity. Id. § 75‐3‐104 (“No proceeding to enforce a
claim against the estate of a decedent or his successors may be
revived or commenced before the appointment of a personal
representative.”); Michael F. Dubis, Comment, Fiduciary and Estate
Liability in Contract and Tort, 55 Marq. L. Rev. 297, 301 (1972)
(explaining that breach of a fiduciary duty could not be brought
against 	an 	estate 	because 	the 	“estate’s 	not 	a 	legal 	entity”).
Administration “under the tutelage of a personal representative”
offers 	“protection 	for 	the 	various 	rights 	of 	the 	decedent’s
creditors, debtors and successors.” Lawrence H. Averill Jr. &
Mary F. Radford, Uniform Probate Code and Uniform Trust Code in
a Nutshell 372 (6th ed. 2001). The personal representative also
obtains “the same power over the title to property of the estate
that an absolute owner would have,” except that he or she must
exercise that power “in trust . . . for the benefit of the creditors
and others interested in the estate.” Utah Code Ann. § 75‐3‐710.

Pierucci v. Pierucci
20130379‐CA 	18 	2014 UT App 163
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. Id. §§ 75‐
3‐103, ‐701.
¶32 	Armando has not directed us to any authority in the
probate code, the pertinent real property or fraud code sections,
or the case law on these subjects that grants an heir the power to
bring this type of cause of action—to recover real property that
was fraudulently obtained during the life of the decedent—on
behalf of the estate. Indeed, the only authority that Armando
does cite appears to be limited by its context and cannot be
logically extended to reach the facts presented here. He cites In re
Estate of Thorley, 579 P.2d 927 (Utah 1978), which concludes that
heirs are authorized to contest a will. Id. at 928. Armando asserts
that because heirs are the real parties in interest for a will
contest, they must also be the real parties in interest for the
purpose 	of 	bringing 	other 	claims 	from 	which 	they 	may
ultimately benefit. The probate code, however, expressly allows
any interested person to challenge a will. Utah Code Ann. § 75‐3‐
401(1). The term “interested person” is defined to include heirs.
Id. § 75‐1‐201(24) (LexisNexis Supp. 2013). That the probate code
would allow for an heir to make such a challenge makes sense,
given that under the laws of intestacy, the heirs would take the
decedent’s property if a will were determined to be invalid. As a
result, the heirs may be the persons with the most direct interest
in a will contest, and they may also have the most pressing
incentive to initiate a testacy proceeding. Furthermore, because a
personal representative is appointed with the commencement of
a testacy proceeding, heirs may be the only persons in a position
to initiate a will challenge. It does not follow from the fact that
the probate code permits heirs to challenge a will that it also
allows heirs to bring a direct action to recover fraudulently
transferred 	property. 10 	As 	a 	consequence, 	while 	it 	seems
10. In the district court, Armando also cited a trust case and a
wrongful death case as support for his position that heirs may
sue to recover real property that was fraudulently transferred.

Pierucci v. Pierucci
20130379‐CA 	19 	2014 UT App 163
uncontroverted 	that 	a 	personal 	representative 	can 	bring 	an
action to recover a decedent’s property, Armando has failed to
demonstrate that an heir can do so on his own. Accordingly, the
district court’s decision that Armando is not a real party in
interest in this case must stand. 11
CONCLUSION
¶33 	Because Armando has not persuaded us that the district
court erred in dismissing the case on the ground that he had not
shown that he was a real party in interest, we affirm. Our
decision to affirm, however, does not preclude Armando from
seeking any remedy suggested by rule 17 of the Utah Rules of
Civil Procedure. See Utah R. Civ. P. 17(a) (“No action shall be
dismissed on the ground that it is not prosecuted in the name of
He has not cited these cases on appeal, and they seem to
highlight the weakness of his claim that an heir is a real party in
interest in connection with an attempt to recover a decedent’s
property. 	For instance, a trustee acts 	as a fiduciary to the
beneficiaries of the trust, and the beneficiaries have independent
authority to challenge the trustee’s actions when he or she seems
to be acting contrary to the beneficiaries’ interests. Anderson v.
Dean Witter Reynolds, Inc., 841 P.2d 742, 745 (Utah Ct. App. 1992).
And the wrongful death statute specifically authorizes heirs to
bring the claim because wrongful death is a statutory claim
designed to compensate the heirs and is distinct from any action
the decedent might have brought for personal injury had the
decedent survived. Haro v. Haro, 887 P.2d 878, 879 (Utah Ct.
App. 1994); see also Francis v. Southern Pac. Co., 162 F.2d 813, 816
(10th Cir. 1947) (discussing Utah’s wrongful death statute).
11. Because we resolve this issue based on Armando’s failure to
bear his burden of persuasion, our ruling does not go so far as to
say that an heir cannot be a real party in interest in such a suit.
We simply do not decide that issue.

Pierucci v. Pierucci
20130379‐CA 	20 	2014 UT App 163
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;
and such ratification, joinder, or substitution shall have the same
effect as if the action had been commenced in the name of the
real party in interest.”). And we have decided the other issues
raised 	in 	order 	to 	assist 	the 	district 	court 	should 	the 	case
ultimately continue in a restructured form. Wilson v. IHC Hosps.,
Inc., 2012 UT 43, ¶ 79, 289 P.3d 369 (noting that appellate courts
generally assist and guide the district court by addressing legal
issues that are likely to arise again on remand).