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

¶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.

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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).

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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).

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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)).

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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.

¶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.