Marriott v. Wilhelmsen

              This opinion is subject to revision before final
                   publication in the Pacific Reporter
                              

                                 IN THE

    SUPREME COURT OF THE STATE OF UTAH

 KAMI F. MARRIOTT, as personal representative of the estate of
                    RANDY E. MARRIOTT,
                         Appellant,
                                    v.
        TERESA WILHELMSEN, Utah State Engineer,
      WEBER BASIN WATER CONSERVANCY DISTRICT, and
          UTAH DIVISION OF WILDLIFE RESOURCES,
                       Appellees.

                           No. 20230963
                       Heard April 11, 2025
                       Filed August 14, 2025

                         On Direct Appeal

              Second District Court, Farmington
              The Honorable Jennifer L. Valencia
                       No. 230700645

                              Attorneys:
  Robert E. Mansfield, Megan E. Garrett, Michael W. Combs,
                Salt Lake City, for appellant
Derek E. Brown, Att’y Gen., Andrew Dymek, Asst. Solic. Gen.,
 Julie I. Valdes, Asst. Att’y Gen., Salt Lake City, for appellee
           Teresa Wilhelmsen, Utah State Engineer
   Jody L. Williams, Richard D. Flint, Melissa L. Reynolds,
                 Salt Lake City, for appellee
          Weber Basin Water Conservancy District
Derek E. Brown, Att’y Gen., Andrew Dymek, Asst. Solic. Gen.,
Salt Lake City, for appellee Utah Division of Wildlife Resources


 CHIEF JUSTICE DURRANT authored the opinion of the Court, in
  which ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN,
         JUSTICE HAGEN, and JUSTICE POHLMAN joined.
                      MARRIOTT v. WILHELMSEN
                        Opinion of the Court



   CHIEF JUSTICE DURRANT, opinion of the Court:
                         INTRODUCTION
    ¶1 Randy Marriott filed an application to appropriate water
in 1997. More than twenty years later, the Utah State Engineer
(Engineer) denied that application, and Marriott appealed. While
the appeal was pending in the district court, Marriott unexpectedly
passed away. Soon after, Marriott’s counsel (Marriott) 1 filed a
motion under rule 25 of the Utah Rules of Civil Procedure to
substitute his estate’s personal representative as plaintiff in the case
to continue his appeal. The district court denied the motion to
substitute and dismissed the case.
    ¶2 This appeal centers around one question: whether the
district court erred when it concluded that Marriott’s death
extinguished his challenge to the Engineer’s denial of his

__________________________________________________________
   1 Court opinions regularly ascribe the actions of counsel to their

principal. But we recognize the oddity of ascribing actions taken by
Randy Marriott’s counsel to Randy Marriott himself after his death.
We also acknowledge that this case comes before us in an odd
procedural posture that makes it difficult to clearly speak of the
appellant in shorthand.
     This appeal is before us on the denial of a motion to substitute
Randy Marriott’s personal representative as plaintiff in this
litigation. At the time of the motion to substitute, the parties
expected Kami Marriott to be named as personal representative,
but she had not yet been appointed. She has since been appointed.
Because of the district court’s denial of the motion to substitute,
Randy Marriott, acting through counsel, remains the plaintiff
before the district court. But before we recalled the case to this
court, the court of appeals granted the motion of appellant’s
counsel to substitute Kami Marriott, acting as Randy Marriott’s
personal representative, as appellant for purposes of this appeal.
     The proper appellant before this court is therefore Kami
Marriott, acting as personal representative of Randy Marriott’s
estate. Still, because distinguishing who was acting at various times
is both confusing and unnecessary to our legal analysis, for ease of
explanation, throughout this opinion we ascribe all actions by
counsel for both Kami Marriott and Randy Marriott during this
litigation to Marriott, meaning Randy Marriott.

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                        Opinion of the Court

application to appropriate water and dismissed the case under rule
25(a)(1) of the Utah Rules of Civil Procedure. We find no common
law cases considering the survival of a claim for review of an
administrative decision. And we hold that Marriott has identified
no appropriate common law analog permitting us to extend the
common law survival rules to his claim. Further, the statute under
which his claim arose does not provide for survival. Marriott’s
death therefore extinguished his claim, so we affirm the district
court’s dismissal of the case.
                          BACKGROUND
    ¶3 In 1997, Marriott applied to the Division of Water Rights
for approval to divert 35.0 second feet of water from a surface
source in Weber Basin to provide irrigation and water for
livestock. 2 Notice of the application was published, and Weber
Basin Conservancy District (Weber Basin) and the Utah Division of
Wildlife Resources (Division), among others, protested the
application. The Engineer held a hearing on the application in 1998.
    ¶4 In 2008, after the application had been pending for a
decade, the Engineer sent a letter to Marriott asking whether he
wished to continue pursuing his application, and Marriott
responded that he did. Over the next ten years, Marriott
communicated with the Engineer a few times to provide additional
information about the application. In 2018, more than twenty years
after the original filing, the Engineer rejected Marriott’s application
and declined to respond to Marriott’s subsequent request for
reconsideration.
    ¶5 Marriott then filed a complaint in the district court,
seeking to reverse the Engineer’s decision. Marriott alleged the
Engineer’s decision was wrong because (1) the source from which
Marriott sought to divert contained unappropriated water; (2) his
application would not interfere with downstream water rights; and
(3) his application was governed by its 1997 filing date, making it
senior to other water rights already approved by the Engineer.
Weber Basin and the Division intervened as defendants in the case.

__________________________________________________________
   2 Marriott’s application sought to appropriate water currently

flowing from the outfall of the Central Weber Sewer Improvement
District Sewer Treatment Plant into the Warren Irrigation
Company Canal based on an agreement between Central Weber
and Warren Irrigation Company.

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                     MARRIOTT v. WILHELMSEN
                       Opinion of the Court

     ¶6 In 2023, while the case was pending in the district court,
Marriott unexpectedly passed away. Marriott then moved under
rule 25(a)(1) of the Utah Rules of Civil Procedure to name his
expected personal representative as the plaintiff to continue
litigation in his place. To support the motion to substitute, Marriott
argued for a broad interpretation of the common law, asserting that
any claim “related to real property or property rights” survives the
death of the original claimant. He asserted that because his claim
related to an inchoate water right and was not merely a personal
claim, it did not abate at death. Weber Basin, the Division, and the
Engineer opposed the motion, arguing that Marriott interpreted the
common law too broadly. They asserted that only claims for
“property damage or conversion” could survive. And, they argued,
the application itself did not create a property right, so its denial
could not be an injury to property. They further contended that no
statute allowed the claim to survive.
    ¶7 The district court denied Marriott’s motion to substitute. It
held that his claim did not survive because (1) he possessed no
perfected property right and (2) any inchoate right in the
application to appropriate water was not mentioned in his will. It
also ruled that Utah’s general survival statute did not permit
Marriott’s claim to survive. Marriott appealed.
            ISSUES AND STANDARDS OF REVIEW
   ¶8 Marriott appeals the district court’s denial of his motion to
substitute and the corresponding dismissal of his claim under rule
25(a)(1) of the Utah Rules of Civil Procedure. We review a district
court’s ruling on a motion to substitute for an abuse of discretion. 3
But we note that a district court “abuses its discretion if it commits
legal error.”4
   ¶9 Marriott also argues that the district court incorrectly held
that he had the burden to prove that his claim did not abate on his
death. We review a district court’s “allocation of the burden of
proof for correctness.” 5




__________________________________________________________
   3 Bradburn v. Alarm Prot. Tech., LLC, 

, 

.

   4 Wilson v. IHC Hosps., Inc., 

, ¶ 52 n.15, 

.

   5 Searle v. Milburn Irrigation Co., 

, 

.



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                        Opinion of the Court

                             ANALYSIS
   ¶10 After Marriott’s death, he moved to substitute his personal
representative as plaintiff in the administrative appeal of the denial
of his water application. Rule 25(a) of the Utah Rules of Civil
Procedure governs the substitution of parties after a party dies.
That rule provides, in relevant part:
       If a party dies and the claim is not thereby
       extinguished, the court may order substitution of the
       proper parties. The motion for substitution may be
       made by any party or by the successors or
       representatives of the deceased party. . . . Unless the
       motion for substitution is made not later than ninety
       days after the death is suggested upon the record . . . ,
       the action shall be dismissed as to the deceased
       party.6
In other words, after a party’s death, any party may move for
substitution. 7 Absent a timely motion to substitute, the case is
“dismissed as to the deceased party.” 8 Once the motion is filed,
substitution is allowed only if (1) the claims survived the party’s
death; (2) the proposed substitute is a proper party; and (3) the
motion is timely. 9 On appeal, the parties dispute only the first
requirement: whether the claim survived Marriott’s death.
   ¶11 As an initial matter, Marriott argues that he does not bear
the burden of demonstrating that his claim survived. Rather, he
argues that the parties opposing his claim bear the burden to prove
that his death abated the claim. While acknowledging the general
principle that a moving party bears the burden of proof,10 he argues
that abatement is an affirmative defense that shifts the burden to
the party asserting it.



__________________________________________________________
   6 UTAH R. CIV. P. 25(a)(1).

   7 

   8 

   9 See 

   10 See Trapnell & Assocs., LLC v. Legacy Resorts, LLC, 

, 

 (“A motion implies a burden that a party must
meet to be awarded the relief it seeks.”).

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                      MARRIOTT v. WILHELMSEN
                        Opinion of the Court

    ¶12 We disagree. While it is true that the burden of proof may
vary based on the type of motion and the procedural posture of a
case, 11 under rule 25, the burden is on the party seeking
substitution to prove that substitution is proper. 12 The rule
establishes a default: if a motion for substitution is not timely filed,
the case is dismissed as to the decedent. 13 This inherently places a
burden on the movant, the party seeking to continue the action. 14
So as movant, Marriott had the burden to demonstrate that his
claim was not extinguished by his death. 15
      ¶13 We now turn to consider whether Marriott’s claim
survived his death. Whether a given claim survives or is
extinguished depends on the nature of the claim itself. 16 Under our
caselaw, we first evaluate whether Marriott’s claim survives under
common law principles. 17 Determining that it does not, we then
turn to whether the claim survives under the statute that created
it. 18 Because that statute does not mention survival, we conclude


__________________________________________________________
   11 See, e.g., State v. Labrum, 

, ¶¶ 45–46, 

(explaining that if a defendant can “articulate a reasonable basis”
to believe that the State refiled criminal charges in bad faith, the
burden shifts to the State to prove that it did not); State v. Smith,

, 

 (describing a criminal defendant’s
limited burden of production on a motion to suppress evidence for
a Fourth Amendment violation before the burden shifts to the
government); Salo v. Tyler, 

, 

 (discussing
parties’ shifting burdens on a motion for summary judgment,
which vary based on who bears the burden on an issue at trial).
   12 See UTAH R. CIV. P. 25(a)(1).

   13 

   14 See 

   15 See id.; see also Trapnell, 

.

   16 See Gressman v. State, 

, ¶¶ 7–9, 

.

   17 See id. ¶ 10.

   18 See id. Utah’s general survival statute also provides that
certain tort claims survive the death of either the injured party or
the wrongdoer. See UTAH CODE § 78B-3-107(1). But neither party
argues that the general survival statute applies here.

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                          Opinion of the Court

that Marriott’s claim did not survive his death and affirm the
judgment of the district court.
I. MARRIOTT’S CLAIM DOES NOT SURVIVE UNDER COMMON LAW
   PRINCIPLES
    ¶14 We first consider whether Marriott’s claim for judicial
review of the Engineer’s denial of his application to appropriate
water survived Marriott’s death under the common law. Under
Utah common law, tort claims of property damage or conversion
survive the original claimant’s death because “a cause of action for
injury done to [property] can achieve its purpose as well after the
death of the owner as before.” 19 But personal tort claims do not
survive, because “the reason for redressing purely personal wrongs
ceases to exist either when the person injured cannot be benefited
by a recovery or the person inflicting the injury cannot be
punished.” 20 Caselaw also suggests that most contract claims
survive the death of the owner of the claim. 21
    ¶15 Marriott asserts that based on this caselaw, his claim
survives so long as it is “related to property.” In contrast, the
appellees assert that only claims for damage to property survive.
But despite the parties’ efforts to harmonize our cases, Marriott’s
claim simply does not fit into any existing common law rule of
survival. It is not a tort claim. 22 It is not a contract claim. 23 Marriott
instead claims a right to appeal the administrative decision of a
state agency denying his application to appropriate water. The
common law does not address the survival of this type of claim.
    ¶16 Having concluded that we are in uncharted territory, we
turn to consider whether Marriott’s claim is sufficiently analogous
to any survivable common law claim such that we should extend
common law survival principles to his administrative appeal.

__________________________________________________________
   19 Gressman v. State, 

, ¶ 7, 

 (cleaned up).

   20 

 (cleaned up).

   21 See Mason v. Union Pac. Ry. Co., 

, 796 (Utah 1890)

(noting that the maxim that personal actions die with the person “is
not applied in the old authorities to causes of action on contracts”
(cleaned up)).
   22 Cf. Gressman, 

.

   23 Cf. Mason, 24 P. at 796.



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                     MARRIOTT v. WILHELMSEN
                        Opinion of the Court

Marriott urges us to analogize his claim to traditional tort claims. 24
But, for the reasons explained below, we are not persuaded that
Marriott’s claim is analogous to any tort claim that was survivable
at common law, so we decline to extend the common law survival
rule to his claim.
   ¶17 Marriott contends that, under the common law, any claim
that “relate[s] to real property or property rights” survives. He
therefore asserts that because his claim relates to water rights,
which are themselves either property rights or related to real
property, his claim should survive. But his broad proposed test is
not supported by the authority he cites. 25
   ¶18 Marriott first points to Sevastopoulos v. Wells Fargo Bank, a
case out of the federal district of Utah. 26 There, a plaintiffbeneficiary alleged that her trustee breached her fiduciary duties,
resulting in an unwarranted lien on the plaintiff’s house. 27 The
__________________________________________________________
   24 Marriott also briefly analogizes his claim to inchoate dower

rights. But we find the analogy inapposite because, at common law,
dower rights “depend[ed] entirely upon the condition that [a wife]
survive her husband.” Gee v. Baum, 

 (Utah 1921). In
other words, dower rights were not survivable. And Marriott
mentions in passing a discussion of prejudgment attachment liens
from a bankruptcy case out of the U.S. District Court for the Middle
District of North Carolina. See Ivester v. Miller, 

, 419–21
(M.D.N.C. 2008). That case recognizes that under North Carolina
law, prejudgment attachment liens remain inchoate until a state
court enters final judgment. See 

 Like the filing date of Marriott’s
water application, a lien’s attachment date dictates priority, so the
liens in that case would have priority over subsequent creditors—
but only once the liens were perfected by final judgment. See 

 The
lien analogy does not get Marriott very far, because the case he cites
does not discuss survival or demonstrate that any inchoate
property right is survivable. And, as we will see, even if we treat
Marriott’s application as an inchoate property right, that does not
guarantee survival here.
   25 See Sevastopoulos v. Wells Fargo Bank, No. 2:19-cv-00182, 

 (D. Utah Nov. 25, 2020); Slavens v. Millard Cnty., No.
2:11-CV-00568, 

 (D. Utah Sep. 20, 2013).
   26 

.

   27 

 at *1–2.



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                         Opinion of the Court

plaintiff died while the litigation was pending, leading the court to
consider whether her claim was “one of property damage such that
it survives her death at Utah common law.” 28 It noted that
“property damage claims” could “include actions related to real
property,” as well as actions related to tangible personal
property.29 And it reasoned that the lien would adversely affect the
value of the property by making it more difficult to sell the house
in the future. 30 So the claim was one for property damage and
survived the plaintiff’s death. 31 The court never asserted that any
claim “related to property” would survive—only that claims
involving property damage survive at common law. 32
   ¶19 Marriott also points to Slavens v. Millard County, another
federal district of Utah case. 33 Quoting a national treatise, the court
summarized the common law survival rule in this way:
       At common law survivable actions are those in which
       the wrong complained of affects primarily property
       and property rights, and in which any injury to the
       person is incidental, while nonsurvivable actions are
       those in which the injury complained of is to the
       person and any effect on property or property rights
       is incidental. 34
This statement of the law is arguably closer to Marriott’s proposed
test: that a claim survives if it is “related to property.” But the
Slavens court had no need to analyze with specificity which types
of property claims are survivable at common law because the court
found that the claims at issue qualified as personal injury claims
that fell within the scope of Utah’s general survival statute. 35 And

__________________________________________________________
   28 Id. at *2.

   29 Id.

   30 See id.

   31 Id.

   32 See id.

   33 

.

   34 

 at *2 (quoting 1 AM. JUR. 2D Abatement, Survival, & Revival,

§ 51 (2013)).
   35 See id. at *2–3.



                                   9
                     MARRIOTT v. WILHELMSEN
                        Opinion of the Court

we are not persuaded that all claims affecting property rights are
automatically survivable.
    ¶20 Rather, under Utah common law, “personal tort actions
abate upon the death of either the claimant or the tortfeasor, while
tort claims for property damage or conversion survive.”36 So we
must determine whether Marriott’s claim for judicial review of the
denial of his water rights application is analogous to a claim for
property damage or conversion. If it is, it may survive his death.
    ¶21 A perfected water right is undoubtedly a property right.37
And a claim that a third party wrongfully misappropriated or
interfered with that water right may qualify as injury to that
property for survival purposes. 38
    ¶22 But Marriott never had a perfected water right. He had
only an application to appropriate water that the Engineer had
denied. “The Utah Code requires the completion of certain steps
before a right to use water—a water right—comes into existence.”39
An application “confers upon the applicant no perfected right to
the use of water.” 40 Indeed, even an approved application remains
unperfected until a certificate of appropriation is issued. 41 An
approved application to appropriate “merely clothes the applicant
with authority to proceed and perfect, if he can, his proposed
appropriation by the actual diversion and application of the water
claimed to a beneficial use.” 42
    ¶23 Marriott claims that the denial of that application qualifies
as an injury to property. But an application creates no right to the
water itself. The possibility that, through the application process,
Marriott could obtain a future water right is simply too speculative
__________________________________________________________
   36 Gressman, 

, ¶ 7.

   37 See In re Bear River Drainage Area, 

 (Utah

1954).
   38 See Gressman, 

, ¶ 7.

   39 Little v. Greene & Weed Inv., 

 (Utah 1992).

   40 See Little Cottonwood Water Co. v. Kimball, 

 (Utah

1930).
   41 See Loosle v. First Fed. Sav. & Loan Ass’n of Logan, 

 (Utah 1993); see also Greene & Weed, 

.
   42 Little Cottonwood Water, 

.



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                         Cite as: 

                        Opinion of the Court

to qualify as property. And without a property interest in the water
right, the denial of the application could not be an injury to
property.
    ¶24 Marriott also cites McGarry v. Thompson for the proposition
that an application to appropriate “is a valuable inchoate right
which may mature into a vested right to the use of water.” 43 While
the application itself may have some value as an inchoate right, the
fact that the application may possibly mature into a vested
property right is not sufficient to ensure survival under common
law tort rules. Those rules require injury to a presently held
property interest. 44 Where Marriott had no present property
interest, we decline his request to extend the common law to this
type of claim.
   ¶25 Marriott also argues that because an application to
appropriate water is transferable, it is survivable. Marriott points
out that Utah Code section 73-3-18 allows applicants to assign
unapproved applications to appropriate, 45 and he notes that
caselaw “has already recognized that inchoate rights created by a
water rights application can be transferred.” 46
    ¶26 But whether inchoate rights can be transferred while a
claimant is alive is a different inquiry than whether inchoate rights
may survive when a claimant dies. That a water rights application
can be transferred may show the application has some identity
separate from an applicant’s personal interest. But that does not
mean that Marriott’s claim for appeal of the denial of the
application is a claim for damage to property, as required by the
common law. 47
    ¶27 Finally, Marriott contends that litigation itself is a right
that can be transferred. He therefore reasons that the right to
 __________________________________________________________
   43 See 

 (Utah 1948).

   44 See Gressman, 

, ¶ 7.

   45 See UTAH CODE § 73-3-18(4). This provision was previously

housed in subsection (5), but was renumbered without amendment
in 2025. See Water Rights Applications Amendments, H.B. 46 § 1,
2025 Leg., Gen. Sess. (Utah 2025). We refer to the current version
for convenience and clarity.
   46 (Citing Loosle, 

.)

   47 See Gressman, 

.



                                  11
                     MARRIOTT v. WILHELMSEN
                          Opinion of the Court

litigate his denied application to appropriate water should be
survivable. But we reiterate that the tests for transferability and
survivability are separate and distinct. Because causes of action can
generally be transferred, 48 if transferability equated to
survivability, the survival requirement embedded in rule 25(a)(1)
would become meaningless. We decline Marriott’s invitation to
rewrite both our common law and our rules to permit survival of
his claim.
    ¶28 In sum, the common law does not address the
survivability of a claim for review of an agency decision denying
an application to appropriate water. And Marriott has not
persuaded us that tort law principles permitting claims for
property damage to survive apply or should be extended here. We
thus find no common law right to survival. So we turn to the
statutory provision that created Marriott’s claim to determine
whether it allows his claim to survive.
II. NO STATUTORY PROVISION ALLOWS MARRIOTT’S CLAIM                   TO
    SURVIVE
    ¶29 If a claim does not survive at common law, it may survive
based on statute. 49 Utah Code section 73-3-14—under which
Marriott brought his claim—allows “[a] person aggrieved by an
order of the state engineer” to “obtain judicial review.” 50 We
therefore look to that statute to determine whether the legislature
intended for this type of claim to survive. 51 And “[t]he best
evidence of the legislature’s intent is the plain language of the
statute itself.” 52 In interpreting the statute, “we assume the
legislature used each term advisedly and in accordance with its
ordinary meaning.”53
    ¶30 Marriott acknowledges that title 73 of the Utah Code,
related to water and irrigation, “does not expressly discuss survival

__________________________________________________________
   48 See Applied Med. Techs., Inc. v. Eames, 

, ¶¶ 16–17, 

.
   49 See Gressman v. State, 

, 

.

   50 UTAH CODE § 73-3-14(1)(a).

   51 See Gressman, 

.

   52 State v. Miller, 

, 

 (cleaned up).

   53 

 (cleaned up).



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                         Opinion of the Court

or abatement,” but he argues that it offers “an indication of
survivability with its provisions relating to assignment and
conveyance.” He points to Utah Code section 73-3-18, which states
that “a right claimed under an application for the appropriation of
water may be assigned.” 54
    ¶31 But assignment and survival are not identical processes. In
fact, under Utah caselaw, for a right to be assignable, it must first
be the type of claim that would survive the death of the original
claimant. 55 Survival is the first inquiry. To read assignability to
mean survivability would reverse that test and render it hollow.
    ¶32 Marriott does not point to any provision in the statute that
suggests that when the legislature said the application “may be
assigned,” it meant “may survive.” 56 He asserts that survivability
can be inferred based on legislative intent. But he fails to provide
any source of that legislative intent. And “[w]here statutory
language is plain and unambiguous, this Court will not look
beyond the same to divine legislative intent.” 57 Instead, we apply
“the rule that a statute should generally be construed according to
its plain language.” 58 We also “presum[e] all omissions to be
purposeful.” 59 We thus treat the omission of survivability in title 73
as a deliberate omission, suggesting that the legislature intended
for claims for administrative appeal of a denied water right to abate
on the death of the original claimant. Because Marriott has
identified no statutory provision that would prevent abatement
here, the district court correctly dismissed his claim.




__________________________________________________________
   54 UTAH CODE § 73-3-18(4).

   55 See Lawler v. Jennings, 

 (Utah 1898) (“The general

test applied in determining the assignability of a chose in action is
whether or not it would survive and pass to the personal
representative of a decedent. If it would so survive, it may be
assigned . . . ; if it does not so survive, it is not assignable . . . .”).
   56 See UTAH CODE § 73-3-18(4).

   57 Brinkerhoff v. Forsyth, 

 (Utah 1989).

   58 

   59 Bagley v. Bagley, 

, 

 (cleaned up).



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                    MARRIOTT v. WILHELMSEN
                       Opinion of the Court

                         CONCLUSION
    ¶33 Marriott appeals the dismissal of his claim for judicial
review of the denial of his application to appropriate water. While
our caselaw provides that tort claims for damage to property or for
conversion survive the death of the original claimant, Marriott’s
claim is neither a tort claim nor a claim for damage to property. We
decline to extend the common law rule of survivability to his claim.
And we further conclude that no statute allows his claim to survive
his death. The district court correctly dismissed the claim, and we
affirm.




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