Date: 02-05-2014

Case Style: Christopher Carlton v. Shalanda Brown and The Adoption Center of Choice, Inc.

Case Number: 2014 UT 6

Judge: Durrant

Court: Supreme Court of Utah on appeal from the Fourth District, Provo Dep’t

Plaintiff's Attorney: Wesley D. Hutchins, West Jordan, for appellant

Defendant's Attorney: Larry S. Jenkins, Lance D. Rich, Salt Lake City, for appellees

Description: ¶1 In this case, Christopher Carlton asks us to once again
consider both the constitutionality of the Utah Adoption Act (Act)
as well as the extent of the rights it affords to putative fathers who
wish to contest adoptions in Utah. Mr. Carlton argues first that
the Act is unconstitutional, both facially and as applied to him,
and second, that the district court erred when, based on a lack of
CARLTON v. BROWN
Opinion of the Court
2
standing, it dismissed his Amended Verified Petition to Establish
Paternity, which included his constitutional challenges to the Act
as well as numerous tort claims. For the reasons set forth below,
we affirm in part and reverse in part.
¶2 First, although we disagree with the district court’s
reasoning regarding Mr. Carlton’s lack of standing to assert the
constitutional claims, given the current state of the pleadings we
would ultimately reach the same conclusion, albeit for different
reasons. Nevertheless, because we also conclude that it was error
for the district court to deny Mr. Carlton leave to amend his
petition—which would have cured the standing defects identified
below—we conclude that the district court’s dismissal of
Mr. Carlton’s constitutional claims was also erroneous.
Accordingly, we reverse the district court’s dismissal of
Mr. Carlton’s constitutional claims and on remand we instruct the
district court to allow Mr. Carlton to amend his petition.
¶3 Second, we affirm the district court’s dismissal of
Mr. Carlton’s tort claims due to his failure to state a claim upon
which relief could be granted, with the exception of one of his
claims for intentional infliction of emotional distress. Mr. Carlton
asserted an IIED claim against both Shalanda Brown and The
Adoption Center of Choice, Inc. (Adoption Center). As to the
former, we affirm the district court’s dismissal due to inadequate
service of process. But as to the latter, we reverse because the
district court’s primary reason for dismissing this claim—Mr.
Carlton’s failure to establish parental rights under the Act—turns
on the outcome of the constitutional issues that were erroneously
dismissed by the district court. Accordingly, we remand this case
to the district court for further proceedings consistent with this
opinion.
BACKGROUND
¶4 Mr. Carlton and Ms. Brown are both residents of
Pennsylvania and have never been married. In 2009, Mr. Carlton
and Ms. Brown were involved in a romantic relationship that
resulted in Ms. Brown becoming pregnant. The relationship
appears to have continued until May 2010 when, just four weeks
prior to her delivery date, Ms. Brown mysteriously left
Mr. Carlton without any notification or indication as to her
whereabouts. Despite the close proximity to her due date,
Mr. Carlton did not take any action in either Utah or Pennsylvania
to protect his parental rights to the unborn child.
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Opinion of the Court
3
¶5 Unbeknownst to Mr. Carlton, Ms. Brown had traveled to
Utah where she gave birth to a baby girl on June 24, 2010. On June
26, 2010, Ms. Brown relinquished her parental rights to Adoption
Center. That same day, Ms. Brown also executed a Birth Father
Affidavit wherein she stated that she was unmarried and refused
to identify the birth father. Instead, she stated that the birth father
had been abusive towards her and had tried to use the child as a
tool to keep her in a relationship with him.
¶6 After giving birth, Ms. Brown returned to Pennsylvania
and allegedly tried to “rekindle” her relationship with
Mr. Carlton. But when Mr. Carlton asked Ms. Brown about the
child’s whereabouts, she informed him that the child was a boy
and that he had died. Aggrieved, Mr. Carlton inquired about the
location of the child’s grave, but Ms. Brown refused to disclose it,
and when Mr. Carlton continued to press this inquiry, Ms. Brown
sued him for harassment.1 It is undisputed that these
communications occurred after Ms. Brown had already
relinquished her parental rights to Adoption Center.
¶7 Meanwhile, on June 29, 2010, and July 20, 2010, Adoption
Center requested and received verifications from the Utah Office
of Vital Records and Statistics confirming that no putative father
was registered with respect to the child. Adoption Center also
confirmed that, as of October 15, 2010, the Pennsylvania
Department of Public Welfare had not received an
acknowledgement or claim of paternity. Consequently, Adoption
Center commenced adoption proceedings for the child.
¶8 Once it became apparent that he was not going to get any
information from Ms. Brown concerning the child, Mr. Carlton
filed a paternity action in Pennsylvania on November 5, 2010.
Mr. Carlton’s action was sent to mediation, and on November 23,
2010, Ms. Brown “broke down” and informed Mr. Carlton that the
child was actually a girl, that she was still alive, and that she had
been given up for adoption in Utah. That same day, the
Pennsylvania court dismissed Mr. Carlton’s action for lack of
jurisdiction.
1 The case was ultimately dismissed on the grounds that there
was a legitimate basis for these communications and that
therefore they could not be classified as “harassment” as a matter
of law.
CARLTON v. BROWN
Opinion of the Court
4
¶9 Back in Utah, the adoption proceedings for the child were
finalized on December 29, 2010. It is undisputed that, as of this
date, no paternity action was pending in any state.
¶10 Mr. Carlton then hired local counsel in an attempt to
intervene in the adoption proceedings. Counsel prepared a
motion to intervene in January 2011 but could not identify the
proper case in which to file the motion. Consequently, Mr. Carlton
began seeking replacement counsel and hired current counsel in
March 2011. That counsel immediately filed a Verified Petition to
Establish Paternity (Petition) for Mr. Carlton on March 8, 2011.
¶11 Mr. Carlton amended his Petition on May 2, 2011
(Amended Petition) in order to add Adoption Center as a party.
He also added the following claims to the Amended Petition: (1) a
request to set aside the adoption; (2) constitutional challenges to
the Act; (3) tort claims against both Adoption Center and
Ms. Brown for fraud, tortious interference with parental rights,
unlawful activity, civil conspiracy, intentional infliction of
emotional distress, and negligent infliction of emotional distress;
and (4) a request for declaratory relief. Mr. Carlton admits that
Ms. Brown has been served only with the Petition, not the
Amended Petition, and that she has “not [been] involved in these
proceedings.”
¶12 In response to the Amended Petition, Adoption Center
filed a Motion to Dismiss or, Alternatively, for Summary
Judgment (Motion) on May 24, 2011. Mr. Carlton opposed the
Motion. Additionally, he filed motions for leave to amend the
Amended Petition and for a rule 56(f) continuance. The district
court conducted a hearing on all of these motions on
November 14, 2011, and entered its order granting Adoption
Center’s Motion and dismissing all of Mr. Carlton’s motions, as
well as his Amended Petition, on February 3, 2012. Mr. Carlton
timely appealed. As this case was certified to us by the Court of
Appeals, we have jurisdiction pursuant to Utah Code section 78A-
3-102(3)(b).
STANDARD OF REVIEW
¶13 “A district court’s grant of a motion to dismiss based
upon the allegations in the plaintiff’s complaint[] presents a
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Opinion of the Court
5
question of law that we review for correctness.”2 Additionally,
“[c]onstitutional issues, including questions regarding due
process, are questions of law that we review for correctness.”3
Finally, “[w]e apply an abuse of discretion standard in reviewing
the denial of a rule 56(f) motion” and a motion for leave to amend,
“and overturn . . . only if the denial of the motion exceed[s] the
limits of reasonability.”4
ANALYSIS
¶14 In his Amended Petition, Mr. Carlton raised several
constitutional challenges to the Act based primarily on alleged
violations of both state and federal guarantees to due process and
equal protection. He also asserted six tort claims against
Ms. Brown and Adoption Center. The district court dismissed all
of these claims on the ground that Mr. Carlton lacked standing to
assert them, or, in the alternative, that he had failed to state a
claim upon which relief could be granted.5 The district court also
2 Osguthorpe v. Wolf Mountain Resorts, L.C., 2010 UT 29, ¶ 10,
232 P.3d 999 (alteration in original) (internal quotation marks
omitted).
3 Salt Lake City Corp. v. Jordan River Restoration Network, 2012
UT 84, ¶ 47, 299 P.3d 990 (internal quotation marks omitted).
4 Petersen v. Riverton City, 2010 UT 58, ¶ 25, 243 P.3d 1261 (third
alteration in original) (internal quotation marks omitted); Hudgens
v. Prosper, Inc., 2010 UT 68, ¶ 15, 243 P.3d 1275 (“We review a
district court’s denial of leave to amend for an abuse of
discretion.”).
5 The district court’s alternative holding actually treated
Adoption Center’s Motion to Dismiss as a motion for summary
judgment pursuant to rule 56 of the Utah Rules of Civil
Procedure. And in granting the motion, the district court
expressly dismissed Mr. Carlton’s claims with prejudice. This was
error, however, because the district court did not give the parties
notice of the conversion, nor did it allow the parties to
supplement the record under rule 56. Oakwood Village LLC v.
Albertsons, Inc., 2004 UT 101, ¶ 12, 104 P.3d 1226 (observing that
“[r]ule 12(b) mandates that a motion to dismiss shall be converted
into one for summary judgment if ‘matters outside the pleadings
are presented to and not excluded by the court’ and all parties
(continued…)
CARLTON v. BROWN
Opinion of the Court
6
dismissed Mr. Carlton’s Motion for Leave to File Second
Amended Petition and for a rule 56(f) continuance because it
reasoned that, given Mr. Carlton’s lack of standing, both motions
would be futile. Mr. Carlton argues that both of these conclusions
were erroneous.
¶15 Although we disagree with the district court’s reasoning
regarding Mr. Carlton’s lack of standing to assert the
constitutional claims, we agree with its ultimate conclusion given
the current state of the pleadings. But because Mr. Carlton’s
proposed amendment to his petition would have cured these
defects, and because we conclude that his motion to amend was
improperly denied by the district court, we hold that the district
court’s dismissal of the constitutional claims was also erroneous.
Accordingly, we reverse the district court’s dismissal of the
constitutional claims and remand this case with the instruction
that Mr. Carlton be granted leave to amend his petition.
¶16 With respect to the tort claims, we agree with the district
court’s decision to dismiss these claims on the ground that
Mr. Carlton has failed to state a claim upon which relief could be
granted, with the exception of Mr. Carlton’s claims for intentional
infliction of emotional distress against both Ms. Brown and
receive ‘reasonable opportunity to present all material made pertinent to
such a motion by Rule 56’” (emphasis added) (quoting UTAH R. CIV.
P. 12(b))). In fact, the district court expressly denied Mr. Carlton’s
request to submit additional evidence pursuant to rule 56.
Accordingly, we review the district court’s alternative holding
under the rule 12(b)(6) standard, and affirm only if “without
considering material outside the complaint, we conclude that
[Mr. Carlton has] failed to state a claim upon which relief can be
granted.” Tuttle v. Olds, 2007 UT App 10, ¶ 10, 155 P.3d 893. We
will also specifically indicate on a claim-by-claim basis whether
we are affirming the district court’s dismissal with or without
prejudice, recognizing the general rule that “dismissal under Rule
12(b)(6) generally is not final or on the merits and the court
normally will give plaintiff leave to file an amended complaint”
except in situations where “it appears to a certainty that plaintiff
cannot state a claim,” in which case dismissal with prejudice is
appropriate. Alvarez v. Galetka, 933 P.2d 987, 991 (Utah 1997)
(internal quotation marks omitted).
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Opinion of the Court
7
Adoption Center. Because we conclude that Ms. Brown was not
properly served with the Amended Petition, we affirm the district
court’s dismissal of the claim on that ground. But with respect to
Adoption Center, we conclude that the district court’s reason for
dismissing this claim—Mr. Carlton’s failure to establish parental
rights to the child—is inadequate, since the question of whether
Mr. Carlton actually so failed depends upon the outcome of the
constitutional challenges that were also erroneously dismissed by
the district court. Accordingly, we reverse the district court’s
dismissal of this claim and remand this case for further
proceedings consistent with this opinion.
I. INADEQUATE BRIEFING
¶17 Before turning to the issues raised by Mr. Carlton’s
appeal, we first consider Adoption Center’s suggestion that we
“either disregard portions of [Mr. Carlton’s brief] or strike the
brief in its entirety, and award attorney fees as appropriate.”
¶18 “Under our rules of appellate procedure, we need not
address briefs that fail to comply with rule 24. Specifically, rule
24(k) states that [b]riefs which are not in compliance may be
disregarded or stricken, on motion or sua sponte by the court.
And we have discretion to not address an inadequately briefed
argument.”6 While we recognize that adoption proceedings are
extremely time-sensitive, we take this opportunity to reemphasize
the fact that “this court is not a depository in which the appealing
party may dump the burden of argument and research.”7 Indeed,
it is the responsibility of counsel to include “the contentions and
reasons of the appellant with respect to the issues presented,
including the grounds for reviewing any issue not preserved in
the trial court, with citations to the authorities, statutes, and parts
of the record relied on.”8 Furthermore, simply providing “bald
citation[s] to authority” is not sufficient to discharge this
6 Broderick v. Apartment Mgmt. Consultants, L.L.C., 2012 UT 17,
¶ 11, 279 P.3d 391 (alteration in original) (internal quotation marks
omitted).
7 State v. Thomas, 961 P.2d 299, 305 (Utah 1998) (internal
quotation marks omitted).
8 UTAH R. APP. P. 24(a)(9).
CARLTON v. BROWN
Opinion of the Court
8
responsibility.9 Rather, counsel must both develop and provide
“reasoned analysis based on that authority.”10
¶19 In this case, Mr. Carlton’s brief was confusing and largely
unhelpful, due mainly to the fact that he devoted over thirty
pages to a summary of the “facts” of the case, which included a
lengthy summary of irrelevant telephone conversations that
occurred between counsel’s wife, Adoption Center, and two other
adoption agencies in Utah that are not parties to this case. Having
spent the majority of his page allotment on such an endeavor,
Mr. Carlton was then forced to discuss five constitutional
challenges to the Act, six different tort claims (including a claim
for fraud, which must be pled with particularity11), and the
district court’s dismissal of his motion for leave to amend and
motion for a rule 56(f) continuance in just twenty-seven pages.
¶20 As a result, most of Mr. Carlton’s arguments were not
well developed, if they were developed at all. For instance,
Mr. Carlton failed to cite any case law from any jurisdiction in
order to set forth the elements of, or the legal standards for, his
claims for fraud, tortious interference with parental rights, pattern
of unlawful activity, civil conspiracy, intentional infliction of
emotional distress, negligent infliction of emotional distress, or
declaratory relief. Where cases are cited, there is no analysis of
those cases, nor any reasoned application of those cases to the
facts of this case. Furthermore, in areas where there are cases that
are directly on point (e.g., claims for violation of due process and
equal protection), Mr. Carlton makes no attempt to distinguish
them. Instead, he simply recognizes their existence and then
asserts that “such cases should be overturned” without arguing
why.
9 Thomas, 961 P.2d at 305.
10 Id.
11 UTAH R. CIV. P. 9(b); Williams v. State Farm Ins. Co., 656 P.2d
966, 971 (Utah 1982) (stating that the relevant surrounding facts
for a fraud claim “must be set forth with sufficient particularity to
show what facts are claimed to constitute such charges” (internal
quotation marks omitted)).
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Opinion of the Court
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¶21 Due to his failure to conform to the requirements of rule
24 of the Utah Rules of Appellate Procedure, we refuse to address
many of the arguments raised in Mr. Carlton’s brief. Arguments
that were inadequately briefed—and accordingly disregarded—
are noted specifically below. We decline, however, to accept
Adoption Center’s invitation to disregard Mr. Carlton’s entire
brief.
II. THE DISTRICT COURT’S REASONS FOR DISMISSING
MR. CARLTON’S CLAIMS DUE TO A LACK OF
STANDING WERE ERRONEOUS
¶22 The district court’s primary reason for granting Adoption
Center’s Motion to Dismiss was that it believed Mr. Carlton
lacked standing to assert both the constitutional and tort claims
that were set forth in his Amended Petition. Mr. Carlton argues
that this conclusion was erroneous. While we agree with
Mr. Carlton that the district court’s reasons for finding a lack of
standing were faulty, we nevertheless agree with its conclusion
that Mr. Carlton does, in fact, lack standing to assert these claims,
as discussed in the next section.
¶23 Utah’s standing requirements are similar to the federal
court system “in that they contain the same three basic elements—
injury, causation, and redressability.”12 And although there are a
few differences between our state courts and the federal system,13
these differences are irrelevant here. In essence, Mr. Carlton
claims that the Act deprived him of his constitutional right to a
meaningful opportunity to develop a relationship with the child
and that he was damaged by the allegedly tortious conduct of
12 Brown v. Dep’t. of Natural Res., 2010 UT 14, ¶ 17, 228 P.3d 747.
13 See id. ¶ 17 (explaining that “[a]lthough our standing
requirements and the federal standing requirements are
similar . . . they are not identical”); Cedar Mountain Envtl., Inc. v.
Tooele Cnty., 2009 UT 48, ¶ 9, 214 P.3d 95 (reiterating that a
plaintiff can maintain standing by asserting an “actual or
potential” injury (emphasis added)). Federal law, in contrast,
requires “actual” injury. Clapper v. Amnesty Int’l USA, 133 S. Ct.
1138, 1147 (2013) (stating that in order to have Article III standing,
the injury “must be concrete, particularized, and actual or
imminent” (internal quotation marks omitted)).
CARLTON v. BROWN
Opinion of the Court
10
Adoption Center and Ms. Brown.14 Therefore, he asked that the
district court strike down the Act on constitutional grounds and
award him damages against Adoption Center and Ms. Brown in
tort.
¶24 With respect to the constitutional claims, however, the
district court reasoned that “because Carlton never established
parental rights to the child [by complying with the Act], he lacks
standing to raise constitutional arguments or otherwise contest
the adoption.” In other words, the district court concluded that
Mr. Carlton lacked standing to challenge the Act because he did
not have any rights to the child in the first place (due to his failure
to comply with the Act) and therefore could not allege an injury.
¶25 This argument fails due to circularity and was therefore
erroneous. If a plaintiff wishes to challenge the constitutionality of
a statute and has adequately shown harm, causation, and
redressability, the allegedly unconstitutional statute cannot then
be used as grounds for denying that plaintiff standing. For if it
could be so utilized, it would be impossible to raise a
constitutional challenge to any statute, no matter how
unconstitutional, provided that the statute itself denied standing
to putative plaintiffs who wish to challenge it. Therefore, we
conclude that the district court erred in dismissing Mr. Carlton’s
constitutional claims based on this reasoning.
¶26 A similar analysis applies to the tort claims asserted in
Mr. Carlton’s Amended Petition, which the district court also
appears to have dismissed due primarily to a lack of standing. In
essence, the district court reasoned that because Mr. Carlton failed
to comply with the Act, he did not have any rights to the child to
begin with and thus could not show damages due to Ms. Brown’s
and Adoption Center’s allegedly tortious interference with those
rights. While it may be true that Mr. Carlton did not have any
rights to the child due to his failure to comply with the Act, the
district court’s argument presupposes that the Act constitutionally
extinguished the rights that Mr. Carlton claims were violated by
Ms. Brown’s and Adoption Center’s allegedly tortious conduct.
But given that the district court had not previously analyzed the
constitutionality of the Act, this conclusion was premature and
14 See In re T.B., 2010 UT 42, ¶ 31, 232 P.3d 1026 (discussing this
right, as recognized in Lehr v. Robertson, 463 U.S. 248 (1983)).
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Opinion of the Court
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therefore erroneous. The district court should have first
determined whether the statute constitutionally deprived
Mr. Carlton of the rights that were allegedly violated by the
tortious conduct. Only then, if the district court decided against
him on the constitutional claims, would it be justified in
dismissing Mr. Carlton’s tort claims due to an inability to allege a
redressable injury.
¶27 These errors notwithstanding, for the reasons stated
below we agree with the district court’s ultimate conclusion that,
given the current state of the pleadings, Mr. Carlton lacks
standing to bring a constitutional challenge to the Act.
III. MR. CARLTON LACKS STANDING TO ASSERT
THE CONSTITUTIONAL CLAIMS BECAUSE HIS
INJURY IS NOT REDRESSABLE BY THIS COURT DUE
TO THE ABSENCE OF THE CHILD’S
ADOPTIVE PARENTS
¶28 In his Amended Petition, Mr. Carlton raised a number of
arguments aimed at proving the unconstitutionality of the Act,
including both facial and as applied arguments based on
violations of procedural and substantive due process, equal
protection, the “open courts” provision of Utah’s constitution, and
vagueness. But Mr. Carlton lacks standing to assert these claims
because his injury cannot be redressed by this court unless the
Adoptive Parents are parties to this case. This is so because
Mr. Carlton’s constitutional arguments and proposed remedies do
not implicate the rights of either Ms. Brown or Adoption Center—
they implicate the rights of the Adoptive Parents. So despite the
fact that Mr. Carlton’s constitutional claims may have merit,15 he
lacks standing to bring them because they are not redressable by
this court until the Adoptive Parents are added to this action.
¶29 Although we recognize that we are not bound by the
federal constitution’s “case or controversy” requirement, we have
repeatedly recognized that a “justiciable controversy” is the
15 Of particular potential merit is Mr. Carlton’s contention,
which he clarified at oral argument, that the Act’s imposition of a
deadline on out-of-state fathers whose home states impose no
such deadline is a violation of due process.
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Opinion of the Court
12
“keystone” of our judicial framework.16 Indeed, we have stated
that the constitutional term
‘judicial power of courts’ is generally understood to
be the power to hear and determine controversies
between adverse parties and questions in litigation.
Such core judicial powers include ‘the authority to
hear and determine justiciable controversies’ as well
as ‘the authority to enforce any valid judgment,
decree or order.’17
But “[i]n the absence of any justiciable controversy between
adverse parties, the courts are without jurisdiction.”18
¶30 Thus, in order for us to retain jurisdiction over this
appeal, Mr. Carlton is required to show that there is a justiciable
controversy before us. The concept of “justiciability” implicates
various categories of cases and doctrines that impose limits on our
jurisdiction, including advisory opinions, feigned and collusive
cases, standing, ripeness, mootness, political questions, and
administrative questions.19 For example, with respect to ripeness
we have recently observed that “[i]n order to constitute a
justiciable controversy, a conflict over the application of a legal
provision must have sharpened into an actual or imminent clash
of legal rights and obligations between the parties thereto.”20
¶31 In this case, we agree with the district court’s ultimate
conclusion that Mr. Carlton lacked standing to bring his
constitutional claims, although we reach that conclusion by a
16 Shipman v. Evans, 2004 UT 44, ¶¶ 32–33, 100 P.3d
1151, abrogated on other grounds by Utahns For Better Dental Health-
Davis, Inc. v. Davis Cnty. Clerk, 2007 UT 97, 175 P.3d 1036.
17 Salt Lake City v. Ohms, 881 P.2d 844, 849 (Utah
1994) (emphasis omitted) (internal citation omitted); see also
Timpanogos Planning & Water Mgmt. Agency v. Cent. Utah Water
Conservancy Dist., 690 P.2d 562, 569 (Utah 1984).
18 Williams v. Univ. of Utah, 626 P.2d 500, 503 (Utah 1981).
19 See Wylie v. Idaho Transp. Bd., 253 P.3d 700, 705 (Idaho 2011).
20 Carter v. Lehi City, 2012 UT 2, ¶ 93, 269 P.3d 141 (internal
quotation marks omitted).
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Opinion of the Court
13
different road. As noted above, “standing” comprises three
components: injury, causation, and redressability.21 Although
Mr. Carlton has adequately shown the former two, he cannot
show the latter because “redressability” requires that the injury be
“redressable by a favorable ruling.”22
¶32 Unfortunately, the district court prevented Mr. Carlton
from joining the Adoptive Parents in this case when it denied his
Motion for Leave to File Second Amended Petition. Consequently,
Mr. Carlton lacks standing to bring these claims because his
injury—the termination of his parental rights—is not redressable
by a favorable ruling from this court. This is so because even if
we were to agree with Mr. Carlton’s arguments against the
constitutionality of the Act, we simply could not grant the relief
he requests, which is that his parental rights to the child be
reinstated and the adoption overturned. Neither Adoption Center
nor Ms. Brown has any rights to relinquish,23 and we certainly do
not have the authority to infringe upon the Adoptive Parents’
rights to the child since they are not parties to this proceeding.24
Because of the Adoptive Parents’ absence, we cannot grant the
relief Mr. Carlton seeks. Therefore, his injury is not redressable,
and consequently he lacks standing to assert the constitutional
challenges set forth in his Amended Petition.
¶33 But despite the fact that we agree with the district court’s
conclusion that Mr. Carlton lacks standing to assert the
constitutional claims as they are presently pled, we nevertheless
reverse its decision to dismiss those claims because we conclude
that the district court erroneously denied Mr. Carlton’s Motion for
Leave to File Second Amended Petition. The district court denied
this motion on the basis of futility, but it is clear from the face of
21 Brown v. Dep’t. of Natural Res., 2010 UT 14, ¶ 17, 228 P.3d 747.
22 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013).
23 See State v. Sims, 881 P.2d 840, 841 (Utah 1994) (dismissing a
case for lack of jurisdiction because even if the court granted the
relief requested “it would have no legal effect on the parties”).
24 Fink v. Miller, 896 P.2d 649, 654 n.6 (Utah Ct. App. 1995)
(observing that the “trial court exceeded the bounds of its
authority by directing the actions of a nonparty”).
CARLTON v. BROWN
Opinion of the Court
14
his proposed Second Amended Petition that Mr. Carlton was
attempting to add the Adoptive Parents, which, as we just noted,
would have granted him standing to bring the constitutional
claims. Hence, we conclude that the district court erred when it
determined that the motion to amend was futile.
¶34 Mr. Carlton correctly notes that, under rule 15(a) of the
Utah Rules of Civil Procedure, “leave [to amend] shall be freely
given when justice so requires.” And in his Motion for Leave to
File Second Amended Petition, Mr. Carlton argued, among other
things, that no prejudice would result from the amendment
because a trial had not yet been scheduled and no formal
discovery had been conducted. This argument was not refuted by
Adoption Center in its opposition to Mr. Carlton’s motion. We
conclude that pursuant to rule 15(a), the district court should have
granted Mr. Carlton leave to amend. Accordingly, we reverse the
district court’s denial of this motion and remand the case with the
instruction that the district court grant Mr. Carlton leave to amend
his petition. And because it is clear that Mr. Carlton’s Second
Amended Petition would have cured the standing issue discussed
above, we also reverse the district court’s dismissal of the
constitutional claims and remand this case to the district court for
further proceedings consistent with this opinion.
IV. EXCEPT FOR MR. CARLTON’S CLAIM FOR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
AGAINST ADOPTION CENTER, THE DISTRICT COURT
PROPERLY DISMISSED MR. CARLTON’S TORT CLAIMS FOR
FAILURE TO STATE A CLAIM
¶35 In his Amended Petition, Mr. Carlton asserted six tort
claims against Adoption Center and Ms. Brown. These claims
were for (1) fraud, (2) tortious interference with parental rights,
(3) pattern of unlawful activity, (4) civil conspiracy, (5) intentional
infliction of emotional distress (IIED), and (6) negligent infliction
of emotional distress. In its order, the district court dismissed all
of these claims due to lack of standing, or, in the alternative, for
failure to state a claim upon which relief could be granted. We
affirm the district court’s dismissal of all the tort claims for failure
to state a claim upon which relief could be granted, except for the
claim for IIED against Adoption Center. As discussed below,
because Mr. Carlton has failed to properly serve Ms. Brown with
the Amended Complaint, either personally or via alternative
service, the district court’s dismissal of the IIED claim against
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Opinion of the Court
15
Ms. Brown was proper. Accordingly, we affirm the dismissal of
this claim. But we reverse the district court’s dismissal of
Mr. Carlton’s IIED claim against Adoption Center. The district
court’s ground for dismissal of that claim was Mr. Carlton’s
failure to establish parental rights to the child. Our opinion
renders this ground inadequate, however, because the question of
whether Mr. Carlton may be able to establish his parental rights
depends upon the outcome of the constitutional challenges that
were also erroneously dismissed by the district court.
Accordingly, we reverse the dismissal of Mr. Carlton’s IIED claim
against Adoption Center and remand this case for further
proceedings consistent with this opinion.
A. Mr. Carlton’s Fraud Claim Fails Because There Was No
Detrimental Reliance
¶36 The district court dismissed Mr. Carlton’s fraud claims
due to his failure to plead fraud with particularity, and because
even if the cause of action was properly pled, Mr. Carlton had not
suffered any injury, since the fraud occurred after Ms. Brown had
already relinquished her parental rights to the child. Mr. Carlton
argues that the district court’s dismissal was improper because
“[t]here was considerable evidence of . . . fraud in the case.” We
disagree and affirm the district court’s dismissal, except that we
affirm the dismissal without prejudice.
¶37 In order to properly assert a claim for fraud, the plaintiff
must show the following nine elements:
(1) a representation; (2) concerning a presently
existing material fact; (3) which was false; (4) which
the representor either (a) knew to be false, or
(b) made recklessly, knowing that he had
insufficient knowledge upon which to base such
representation; (5) for the purpose of inducing the
other party to act upon it; (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 his injury and damage.25
25 Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 53 n.38, 201
P.3d 966 (emphasis omitted) (internal quotation marks omitted).
CARLTON v. BROWN
Opinion of the Court
16
¶38 Additionally, rule 9(b) of the Utah Rules of Civil
Procedure requires that “[i]n all averments of fraud or mistake,
the circumstances constituting fraud or mistake shall be stated
with particularity.” This means that “a complaint cannot survive
dismissal by pleading mere conclusory allegations
unsupported . . . by a recitation of relevant surrounding facts.”26
In other words, “the mere recitation by a plaintiff of the elements
of fraud in a complaint does not satisfy the particularity
requirement”27—only “a sufficiently clear and specific description
of the facts underlying the [plaintiff’s] claim of [fraud] will satisfy
the requirements of rule 9(b).”28
¶39 We agree with the district court’s determination that even
if the allegations in Mr. Carlton’s Amended Petition were
sufficient to satisfy the requirement to plead fraud with
particularity, his fraud claim would still fail because he has failed
to plead detrimental reliance on such statements. Although
Mr. Carlton alleges that his failure to file a timely petition to
establish paternity was due to Ms. Brown’s fraud, it is undisputed
that the fraudulent statements he identifies occurred after
Ms. Brown had already relinquished her rights to Adoption
Center. Thus, by the time the statements were made, Mr. Carlton’s
petition would still have been untimely under Utah law, and thus
he cannot show detrimental reliance. Accordingly, we affirm the
district court’s dismissal of this claim, but without prejudice.
B. Tortious Interference with Parental Rights
¶40 Mr. Carlton acknowledges that there currently is no cause
of action for tortious interference with parental rights but
nevertheless urges us to recognize that cause of action. We decline
to do so for several reasons.
¶41 Mr. Carlton has not given us adequate reason to adopt a
new tort. While it may be true that we have “the ability and
26 State v. Apotex Corp., 2012 UT 36, ¶ 21, 282 P.3d 66 (alteration
in original) (internal quotation marks omitted).
27 Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 16, 70 P.3d
35.
28 Hill v. Allred, 2001 UT 16, ¶ 14, 28 P.3d 1271 (first alteration
in original) (internal quotation marks omitted).
Cite as: 2014 UT 6
Opinion of the Court
17
discretion to fashion a remedy where one may not already exist,
based on sound principles of fairness and equity,” Mr. Carlton
does not cite to any legal authority for his position, does not
develop any preexisting authority, nor does he adequately
demonstrate how the remedies that are currently available to him
are inadequate to address his alleged injuries. In fact, Mr. Carlton
does not even propose or discuss any legal standard for the tort he
wishes us to adopt. Instead, he merely cites to a Virginia Supreme
Court decision wherein the tort was recognized, referring to its
“high persuasive value” but then fails to indicate why we should
view it as persuasive or adopt the standard used therein.
Therefore, due primarily to the inadequacy of Mr. Carlton’s brief,
we decline to consider whether this tort ought to be recognized in
Utah and affirm the district court’s dismissal of this claim, with
prejudice.
C. Pattern of Unlawful Activity Claim
¶42 Mr. Carlton argues that Adoption Center is liable for a
pattern of unlawful activity because it “intentionally keep[s birth
fathers] ‘in the dark’ about adoption plans” and “felonious[ly
gifts] apartment, rent, utilities, various amenities, and most
astonishingly ‘post placement’ case money of $3,000 - $4,000 to
birth mothers.” The district court dismissed this claim for failure
to state a claim upon which relief could be granted. We affirm the
district court’s dismissal, but without prejudice.
¶43 Under Utah’s Pattern of Unlawful Activity Act (UPUA),29
the plaintiff must show injury due to a “pattern of unlawful
activity,” which is defined by UPUA as follows:
’Pattern of unlawful activity’ means engaging in
conduct which constitutes the commission of at least
three episodes of unlawful activity, which episodes
are not isolated, but have the same or similar
purposes, results, participants, victims, or methods
of commission, or otherwise are interrelated by
distinguishing characteristics. Taken together, the
episodes shall demonstrate continuing unlawful
29 UTAH CODE §§ 76-10-1601–76-10-1609.
CARLTON v. BROWN
Opinion of the Court
18
conduct and be related either to each other or to the
enterprise.30
¶44 With respect to this definition, we have clarified that
“[t]he proper test for determining whether there was
a pattern of unlawful activity is whether there was ‘a series of
related predicates extending over a substantial period of time’ or a
demonstrated threat of continuing unlawful activity and not
whether there were multiple schemes.”31
¶45 Additionally, UPUA requires plaintiffs to plead all claims
with particularity: “In all actions under this section, the elements
of each claim or cause of action shall be stated with particularity
against each defendant.”32 This requirement is imposed “in order
for the court to determine whether the facts as pleaded are
sufficient to show that the alleged activity would be illegal in
Utah and would fall into one of the [statute’s] enumerated
categories.”33 Accordingly, we affirm the district court’s dismissal
of this claim for failure to state a claim, but dismiss it without
prejudice.
¶46 The district court correctly observed that Mr. Carlton’s
Amended Petition failed to (1) plead his claim for pattern of
unlawful activity with particularity and (2) demonstrate “at least
three episodes” of unlawful activity. Indeed, on appeal
Mr. Carlton merely alleges that Adoption Center is involved in an
“ill-conceived scheme to prevent birth fathers from exercising
their parental rights and otherwise timely objecting to the
adoption of their children.” He does not state with specificity
who, when, where, or what has happened in furtherance of this
scheme, nor has he shown how this activity satisfies UPUA’s
definition of “unlawful activity.”34
30 Id. § 76-10-1602(2) (emphasis added).
31 Hill v. Estate of Allred, 2009 UT 28, ¶ 41, 216 P.3d 929 (quoting
H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 242 (1989)).
32 UTAH CODE § 76-10-1605(7).
33 Holbrook v. Master Prot. Corp., 883 P.2d 295, 302 (Utah Ct.
App. 1994) (internal quotation marks omitted).
34 UTAH CODE § 76-10-1602(4)(a)–(jjjj).
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Opinion of the Court
19
¶47 The district court also correctly noted that even if
Mr. Carlton had adequately pled this claim with particularity, the
actions he complains about were not unlawful. Mr. Carlton
alleges that Adoption Center is guilty of fraud for keeping birth
fathers “in the dark,” but this allegation ignores the fact that Utah
law does not impose a duty upon Adoption Center to inform birth
fathers who do not take action to preserve their right to
notification of a pending adoption. Furthermore, Mr. Carlton’s
second suggestion, namely that Adoption Center “feloniously”
gives support to birth mothers, is also patently false since the Act
permits Adoption Center to pay for certain expenses.35 For these
reasons, the district court correctly dismissed Mr. Carlton’s claim
for pattern of unlawful activity, and, accordingly, we affirm its
dismissal, without prejudice.
D. Civil Conspiracy Claim
¶48 With respect to his civil conspiracy claim, Mr. Carlton
argues that “[i]n light of the pleadings and evidence presented . . .
the Court [should] take action in this case to reverse the lower
court.” Unfortunately, he does not inform us to which pleadings
or evidence he is referring. Nor does he set forth the legal
elements of this cause of action using relevant case law or show
how the district court erred in assessing the facts of this case in
light of those elements. In short, Mr. Carlton does not, in any
fashion, engage the district court’s analysis of this cause of action.
Accordingly, we refuse to consider this claim on appeal due to
inadequate briefing and affirm the district court’s dismissal,
without prejudice.
E. Intentional Infliction of Emotional Distress
¶49 Mr. Carlton argues that the district court erred in
dismissing his claims for IIED against both Ms. Brown and
Adoption Center. We agree with Mr. Carlton with respect to his
claim asserted against Adoption Center, but disagree with respect
to the claim asserted against Ms. Brown.
¶50 In order to state a claim for IIED, a plaintiff must show
that the defendant
35 See id. § 76-7-203(1)(a).
CARLTON v. BROWN
Opinion of the Court
20
intentionally engaged in some conduct toward the
plaintiff, (a) with the purpose of inflicting emotional
distress, or, (b) where any reasonable person would
have known that such would result; and his actions
are of such a nature as to be considered outrageous
and intolerable in that they offend against the
generally accepted standards of decency and
morality.36
¶51 Furthermore, we have also observed that “[t]o be
considered outrageous, the conduct must evoke outrage or
revulsion; it must be more than unreasonable, unkind, or
unfair.”37 And finally, “[w]here reasonable men may differ, it is
for the jury, subject to the control of the court, to determine
whether, in the particular case, the conduct has been sufficiently
extreme and outrageous to result in liability.”38
1. The District Court’s Dismissal of the IIED Claim Brought
Against Ms. Brown Was Proper Because She Was not Served
with the Amended Petition
¶52 We conclude that the district court was correct to dismiss
Mr. Carlton’s IIED claim against Ms. Brown because she was not
properly served with the Amended Petition. “For a court to
acquire jurisdiction, there must be a proper issuance and service
of summons.”39 In his brief, Mr. Carlton admits that Ms. Brown
has not been served with the Amended Petition: “Counsel for
[Adoption Center] stated to the undersigned counsel in an email
that [Adoption Center’s] social worker spoke with Brown on
May 24, 2011, and Brown confirmed that she had not yet been
served with the amended petition.” Mr. Carlton then states that
36 Anderson Dev. Co. v. Tobias, 2005 UT 36, ¶ 55, 116 P.3d 323
(internal quotation marks omitted).
37 Cabaness v. Thomas, 2010 UT 23, ¶ 38, 232 P.3d 486 (internal
quotation marks omitted).
38 Oman v. Davis Sch. Dist., 2008 UT 70, ¶ 52, 194 P.3d 956
(internal quotation marks omitted).
39 Jackson Constr. Co. v. Marrs, 2004 UT 89, ¶ 10, 100 P.3d 1211.
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Opinion of the Court
21
[s]ubsequent to [Adoption Center’s] communication
with Brown, the Lycoming County Sheriff in
Pennsylvania had [sic] been unable to serve Brown,
on numerous occasions, even though her car was
present at her home, where she was previously
served with the original Verified Petition, and where
she appeared to be home, peering out the window,
but refused to come to the door. Efforts to serve
Brown with the Amended Verified Petition were
continuing for some time.
¶53 Despite his belief that Ms. Brown may have been
avoiding service of the Amended Petition, Mr. Carlton did not file
a motion “requesting an order allowing service by publication or
by some other means”40 and has not demonstrated that service
has been effectuated on Ms. Brown, either personally or by courtordered
alternative means.41 Therefore, the district court’s
dismissal of this claim was justified due to ineffective service, and,
accordingly, we affirm its dismissal, but without prejudice.
2. Because We Conclude that Mr. Carlton’s Constitutional
Challenges Were Erroneously Dismissed, the District Court’s
Reason for Dismissing the IIED Claim Against Adoption
Center Is Now Inadequate
¶54 The district court stated its primary reason for dismissing
Mr. Carlton’s IIED claim against Adoption Center as follows:
Because [Mr.] Carlton did not establish his parental
rights to the child prior to the mother’s
relinquishment of all her parental rights,
[Mr.] Carlton was not injured by the adoption, nor
was he injured by the acts of the Adoption Center . . . .
[Mr.] Carlton failed to take timely action prior to the
adoption to demonstrate that he intended to assume
his parental responsibilities. Therefore,
40 UTAH R. CIV. P. 4(d)(4)(A).
41 See Jackson Constr. Co., 2004 UT 89, ¶ 22 (“Once alternative
service is authorized, it must be reasonably calculated, under all
the circumstances, to apprise the interested parties of the
pendency of the action to the extent reasonably possible or
practicable.” (internal quotation marks omitted)).
CARLTON v. BROWN
Opinion of the Court
22
[Mr.] Carlton’s [tort] claims are without merit, and
Adoption Center’s motion [to dismiss] is granted.
Because we today reverse the district court’s dismissal of
Mr. Carlton’s constitutional claims, the question of whether he
may be able to “establish his parental rights to the child” remains
open. Accordingly, we reverse the district court’s dismissal of
Mr. Carlton’s claim for IIED against Adoption Center.
F. Negligent Infliction of Emotional Distress
¶55 Finally, Mr. Carlton argues that the district court’s
dismissal of his claim for negligent infliction of emotional distress
against Adoption Center and Ms. Brown was in error. We
disagree.
¶56 In order to prevail on a claim for negligent infliction of
emotional distress, the plaintiff must show the following:
If the actor unintentionally causes emotional distress
to another, he is subject to liability to the other for
resulting illness or bodily harm if the actor
(a) should have realized that his conduct involved
an unreasonable risk of causing the distress,
otherwise than by knowledge of the harm or peril of
a third person, and (b) from facts known to him,
should have realized that the distress, if it were
caused, might result in illness or bodily harm.42
¶57 We have held previously that it is not enough for a
plaintiff to merely allege emotional distress. Instead, she must
prove that distress by means of severe physical or mental
manifestations.43
42 Anderson Dev. Co., 2005 UT 36, ¶ 57 (internal quotation
marks omitted).
43 E.g., Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 975
(Utah 1993) (observing that “either physical or mental illness may
support the [negligent infliction of emotional distress] cause of
action” and that the physical or mental illness must be such that
“a reasonable [person], normally constituted, would be unable to
adequately cope with the mental stress engendered by the
circumstances of the case” (alteration in original) (internal
quotation marks omitted)).
Cite as: 2014 UT 6
Opinion of the Court
23
¶58 Here, we conclude that the district court correctly
dismissed Mr. Carlton’s claim for negligent infliction of emotional
distress because, in addition to the fact that Ms. Brown was not
properly served with the Amended Petition, Mr. Carlton failed to
allege that the distress he claimed to have suffered manifested
itself through severe mental or physical symptoms. Therefore, we
affirm the district court’s dismissal of this cause of action for
failure to state a claim but dismiss it without prejudice.
V. FOR THE REASONS STATED ABOVE, WE AFFIRM THE
DISTRICT COURT’S DENIAL OF MR. CARLTON’S REQUEST
FOR DECLARATORY RELIEF
¶59 In his Amended Petition, Mr. Carlton requested “that an
order issue declaring any previous termination of [Mr. Carlton’s]
parental rights, and/or any adoption to be set aside, and further
that any statute upon which [Adoption Center and Ms. Brown]
may rely to ostensibly justify their wrongful conduct . . . be
declared unconstitutional.” As justification for such an order,
Mr. Carlton asserted the same arguments mentioned above,
namely the facial and as applied unconstitutionality of the Act,
violations of due process and equal protection, violation of Utah’s
constitutional open courts provision, and vagueness. As set forth
above, however, we cannot reach the merits of these claims until
the child’s adoptive parents are parties to this action, since their
rights would be directly or indirectly implicated by the grant of
declaratory relief Mr. Carlton seeks. Therefore, due process
requires that the Adoptive Parents be given the opportunity to be
heard with respect to this issue. Accordingly, we decline to
address the merits of this claim and remand it to the district court
for further proceedings consistent with this opinion.

Outcome: ¶60 For the foregoing reasons, we reverse the district court’s
dismissal of Mr. Carlton’s constitutional challenges to the Act. But
we affirm the district court’s dismissal of all of the tort claims
asserted in the Amended Petition for failure to state a claim, with
the exception of Mr. Carlton’s claim for intentional infliction of
emotional distress against Ms. Brown and Adoption Center.
Although Mr. Carlton adequately pled the former, because he has
not yet served Ms. Brown with the Amended Petition we must
dismiss this claim for lack of jurisdiction. And since we now
reverse the district court’s dismissal of Mr. Carlton’s
constitutional claims, the dismissal of his claim for IIED against
Adoption Center must also be reversed, for the reasons stated
above. We now remand this case to the district court for further
proceedings consistent with this opinion.

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