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

2014 UT 6

IN THE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

C HRISTOPHER C ARLTON
, Appellant,

v

. S HALANDA B ROWN and

T HE A DOPTION C ENTER OF C HOICE
, I NC
.,

Appellees.

No. 20120268 Filed February 25, 2014

Fourth District, Provo Dep’t

The Honorable Steven L. Hansen

No. 114400552

Attorneys:
Wesley D. Hutchins, West Jordan, for appellant

Larry S. Jenkins, Lance D. Rich, Salt Lake City, fo r appellees

C HIEF J USTICE D URRANT authored the opinion of the Court, in

which A SSOCIATE C HIEF J USTICE N EHRING
, J USTICE P ARRISH , J USTICE L EE
, and J UDGE R OTH joined.

Having recused herself, J USTICE D URHAM does not participate herein; Court of Appeals
J UDGE S TEPHEN L. R OTH sat.

C HIEF J USTICE D URRANT , opinion of the Court:

INTRODUCTION

¶1 In this case, Christopher Carlton asks us to once a gain consider both the constitutionality of the Utah Ado ption Act (Act) as well as the extent of the rights it affords to p utative fathers who wish to contest adoptions in Utah. Mr. Carlton argu es first that the Act is unconstitutional, both facially and as a pplied to him,
and second, that the district court erred when, bas ed on a lack ofC ARLTON v . B ROWN

Opinion of the Court

2 standing, it dismissed his Amended Verified Petitio n to Establish Paternity, which included his constitutional challe nges to the Act

as well as numerous tort claims. For the reasons se t 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 t he pleadings we would ultimately reach the same conclusion, albeit for different
reasons. Nevertheless, because we also conclude tha t it was error for the district court to deny Mr. Carlton leave to amend his petition—which would have cured the standing defect s identified

below—we conclude that the district court’s dismiss al of

Mr. Carlton’s constitutional claims was also errone ous. Accordingly, we reverse the district court’s dismis sal of

Mr. Carlton’s constitutional claims and on remand w e instruct the district court to allow Mr. Carlton to amend his pe tition.

¶3 Second, we affirm the district court’s dismissal of

Mr. Carlton’s tort claims due to his failure to sta te a claim upon which relief could be granted, with the exception o f one of his

claims for intentional infliction of emotional dist ress. 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 du e to inadequate service of process. But as to the latter, we revers e because the district court’s primary reason for dismissing this claim—Mr. Carlton’s failure to establish parental rights unde r the Act—turns

on the outcome of the constitutional issues that we re erroneously dismissed by the district court. Accordingly, we re mand this case to the district court for further proceedings consi stent 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 relations hip that resulted in Ms. Brown becoming pregnant. The relati onship 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.Cite as: 2014 UT 6

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 right s to Adoption Center. That same day, Ms. Brown also executed a Bi rth Father

Affidavit wherein she stated that she was unmarried and refused to identify the birth father. Instead, she stated t hat the birth father

had been abusive towards her and had tried to use t he child as a tool to keep her in a relationship with him.

¶6 After giving birth, Ms. Brown returned to Pennsylva nia and allegedly tried to “rekindle” her relationship with

Mr. Carlton. But when Mr. Carlton asked Ms. Brown a bout the
child’s whereabouts, she informed him that the chil d was a boy and that he had died. Aggrieved, Mr. Carlton inquir ed about the location of the child’s grave, but Ms. Brown refuse d to disclose it, and when Mr. Carlton continued to press this inquir y, 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, Ado ption Center requested and received verifications from th e 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 Pennsyl vania 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 ge t any information from Ms. Brown concerning the child, Mr . Carlton filed a paternity action in Pennsylvania on Novembe r 5, 2010.
Mr. Carlton’s action was sent to mediation, and on November 23,
2010, Ms. Brown “broke down” and informed Mr. Carlt on 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 f or lack of jurisdiction.

1 The case was ultimately dismissed on the grounds t hat there was a legitimate basis for these communications and that therefore they could not be classified as “harassme nt” as a matter

of law.C ARLTON v . B ROWN

Opinion of the Court

4 ¶9 Back in Utah, the adoption proceedings for the chil d were finalized on December 29, 2010. It is undisputed th at, 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 prep ared a motion to intervene in January 2011 but could not i dentify the proper case in which to file the motion. Consequent ly, Mr. Carlton began seeking replacement counsel and hired current counsel in March 2011. That counsel immediately filed a Verifi ed Petition to Establish Paternity (Petition) for Mr. Carlton on M arch 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 P etition: (1) a request to set aside the adoption; (2) constitution al challenges to the Act; (3) tort claims against both Adoption Cent er and Ms. Brown for fraud, tortious interference with par ental rights, unlawful activity, civil conspiracy, intentional in fliction of emotional distress, and negligent infliction of emo tional distress; and (4) a request for declaratory relief. Mr. Carlt on admits that Ms. Brown has been served only with the Petition, n ot the Amended Petition, and that she has “not [been] invo lved in these proceedings.”

¶12 In response to the Amended Petition, Adoption Cente r filed a Motion to Dismiss or, Alternatively, for Su mmary Judgment (Motion) on May 24, 2011. Mr. Carlton oppo sed 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 o n November 14, 2011, and entered its order granting A doption 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 b y the Court of Appeals, we have jurisdiction pursuant to Utah Code section 78A3-102(3)(b).

STANDARD OF REVIEW

¶13 “A district court’s grant of a motion to dismiss ba sed upon the allegations in the plaintiff’s complaint[] presents aCite as: 2014 UT 6

Opinion of the Court

5 question of law that we review for correctness.” 2 Additionally, “[c]onstitutional issues, including questions regar ding due process, are questions of law that we review for co rrectness.” 3 Finally, “[w]e apply an abuse of discretion standar d 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 motio n exceed[s] the limits of reasonability.” 4

ANALYSIS

¶14 In his Amended Petition, Mr. Carlton raised several constitutional challenges to the Act based primaril y 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 d ismissed all of these claims on the ground that Mr. Carlton lack ed standing to
assert them, or, in the alternative, that he had fa iled 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 quo tation marks omitted).

3 Salt Lake City Corp. v. Jordan River Restoration Ne twork , 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 o mitted); 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 ab use 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 C ivil Procedure. And in granting the motion, the district court expressly dismissed Mr. Carlton’s claims with preju dice. This was
error, however, because the district court did not give the parties notice of the conversion, nor did it allow the part ies 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 sha ll be converted into one for summary judgment if ‘matters outside t he pleadings are presented to and not excluded by the court’ and all parties (continued...)C ARLTON v . B ROWN

Opinion of the Court

6 dismissed Mr. Carlton’s Motion for Leave to File Se cond Amended Petition and for a rule 56(f) continuance b ecause it reasoned that, given Mr. Carlton’s lack of standing , both motions would be futile. Mr. Carlton argues that both of th ese conclusions

were erroneous.

¶15 Although we disagree with the district court’s reas oning regarding Mr. Carlton’s lack of standing to assert the constitutional claims, we agree with its ultimate c onclusion 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 th at the district

court’s dismissal of the constitutional claims was also erroneous. Accordingly, we reverse the district court’s dismis sal of the

constitutional claims and remand this case with the instruction that Mr. Carlton be granted leave to amend his peti tion.

¶16 With respect to the tort claims, we agree with the district court’s decision to dismiss these claims on the gro und 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. B rown and

receive ‘ reasonable opportunity to present all material made pertinent to such a motion by Rule 56 ’” (emphasis added) (quoting U TAH R. C IV

. P. 12(b))). In fact, the district court expressly deni ed Mr. Carlton’s request to submit additional evidence pursuant to r ule 56. Accordingly, we review the district court’s alterna tive holding under the rule 12(b)(6) standard, and affirm only i f “without considering material outside the complaint, we conc lude that [Mr. Carlton has] failed to state a claim upon whic h 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 wit h or without prejudice, recognizing the general rule that “dismi ssal under Rule 12(b)(6) generally is not final or on the merits an d the court normally will give plaintiff leave to file an amend ed complaint” except in situations where “it appears to a certain ty 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).Cite as: 2014 UT 6

Opinion of the Court

7 Adoption Center. Because we conclude that Ms. Brown was not properly served with the Amended Petition, we affir m the district court’s dismissal of the claim on that ground. But with respect to Adoption Center, we conclude that the district cour t’s reason for dismissing this claim—Mr. Carlton’s failure to esta blish parental rights to the child—is inadequate, since the questi on of whether Mr. Carlton actually so failed depends upon the out come of the constitutional challenges that were also erroneousl y dismissed by the district court. Accordingly, we reverse the dis trict court’s

dismissal of this claim and remand this case for fu rther 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 suggest ion that we “either disregard portions of [Mr. Carlton’s brief] or strike the brief in its entirety, and award attorney fees as a ppropriate.”

¶18 “Under our rules of appellate procedure, we need n ot address briefs that fail to comply with rule 24. Sp ecifically, rule 24(k) states that [b]riefs which are not in complia nce may be disregarded or stricken, on motion or sua sponte by the court. And we have discretion to not address an inadequate ly 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 wh ich 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 p reserved 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 disc harge this

6 Broderick v. Apartment Mgmt. Consultants, L.L.C. , 2012 UT 17, ¶ 11, 279 P.3d 391 (alteration in original) (intern al quotation marks omitted).

7 State v. Thomas , 961 P.2d 299, 305 (Utah 1998) (internal quotation marks omitted).

8 U TAH R. A PP

. P. 24(a)(9).C ARLTON v . B ROWN

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 o ver thirty pages to a summary of the “facts” of the case, whic h included a lengthy summary of irrelevant telephone conversatio ns that occurred between counsel’s wife, Adoption Center, a nd two other adoption agencies in Utah that are not parties to t his case. Having spent the majority of his page allotment on such an endeavor,

Mr. Carlton was then forced to discuss five constit utional challenges to the Act, six different tort claims (i ncluding a claim for fraud, which must be pled with particularity 11 ), 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 n ot 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 st andards for, his claims for fraud, tortious interference with parent al rights, pattern of unlawful activity, civil conspiracy, intentional infliction of emotional distress, negligent infliction of emotion al 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 the re are cases that are directly on point (e.g., claims for violation o f 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” with out arguing why.

9 Thomas , 961 P.2d at 305.

10 Id

.

11 U TAH R. C IV

. P. 9(b); Williams v. State Farm Ins. Co. , 656 P.2d 966, 971 (Utah 1982) (stating that the relevant sur rounding facts

for a fraud claim “must be set forth with sufficien t particularity to

show what facts are claimed to constitute such char ges” (internal quotation marks omitted)).Cite as: 2014 UT 6

Opinion of the Court

9 ¶21 Due to his failure to conform to the requirements o f rule 24 of the Utah Rules of Appellate Procedure, we ref use to address many of the arguments raised in Mr. Carlton’s brief . Arguments that were inadequately briefed—and accordingly disr egarded— are noted specifically below. We decline, however, to accept Adoption Center’s invitation to disregard Mr. Carlt on’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 Ad option

Center’s Motion to Dismiss was that it believed Mr. Carlton lacked standing to assert both the constitutional a nd tort claims

that were set forth in his Amended Petition. Mr. Ca rlton argues that this conclusion was erroneous. While we agree with

Mr. Carlton that the district court’s reasons for f inding a lack of standing were faulty, we nevertheless agree with it s conclusion that Mr. Carlton does, in fact, lack standing to as sert these claims,

as discussed in the next section.

¶23 Utah’s standing requirements are similar to the fed eral court system “in that they contain the same three b asic elements— injury, causation, and redressability.” 12 And although there are a

few differences between our state courts and the fe deral system, 13
these differences are irrelevant here. In essence, Mr. Carlton claims that the Act deprived him of his constitutio nal right to a meaningful opportunity to develop a relationship wi th the child and that he was damaged by the allegedly tortious c onduct 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 “ac tual or potential ” injury (emphasis added)). Federal law, in contras t, requires “actual” injury. Clapper v. Amnesty Int’l USA , 133 S. Ct. 1138, 1147 (2013) (stating that in order to have Ar ticle III standing, the injury “must be concrete, particularized, and a ctual or imminent” (internal quotation marks omitted)).C ARLTON v . B ROWN

Opinion of the Court

10 Adoption Center and Ms. Brown. 14 Therefore, he asked that the

district court strike down the Act on constitutiona l grounds and award him damages against Adoption Center and Ms. B rown 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 other wise contest the adoption.” In other words, the district court c oncluded that Mr. Carlton lacked standing to challenge the Act be cause 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 all ege an injury.

¶25 This argument fails due to circularity and was ther efore erroneous. If a plaintiff wishes to challenge the c onstitutionality of a statute and has adequately shown harm, causation, and redressability, the allegedly unconstitutional stat ute cannot then be used as grounds for denying that plaintiff stand ing. For if it could be so utilized, it would be impossible to rai se 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. Th erefore, we

conclude that the district court erred in dismissin g Mr. Carlton’s constitutional claims based on this reasoning.

¶26 A similar analysis applies to the tort claims asser ted in
Mr. Carlton’s Amended Petition, which the district court also appears to have dismissed due primarily to a lack o f standing. In
essence, the district court reasoned that because M r. 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 M s. Brown’s and Adoption Center’s allegedly tortious interferen ce with those rights. While it may be true that Mr. Carlton did n ot have any rights to the child due to his failure to comply wi th the Act, the district court’s argument presupposes that the Act constitutionally extinguished the rights that Mr. Carlton claims wer e violated by Ms. Brown’s and Adoption Center’s allegedly tortiou s conduct. But given that the district court had not previousl y analyzed the constitutionality of the Act, this conclusion was p remature 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)).Cite as: 2014 UT 6

Opinion of the Court

11 therefore erroneous. The district court should have first determined whether the statute constitutionally dep rived Mr. Carlton of the rights that were allegedly viola ted by the tortious conduct. Only then, if the district court decided against him on the constitutional claims, would it be justi fied in dismissing Mr. Carlton’s tort claims due to an inab ility to allege a redressable injury.

¶27 These errors notwithstanding, for the reasons state d below we agree with the district court’s ultimate c onclusion that, given the current state of the pleadings, Mr. Carlt on 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 numbe r of arguments aimed at proving the unconstitutionality of the Act, including both facial and as applied arguments base d on violations of procedural and substantive due proces s, equal protection, the “open courts” provision of Utah’s c onstitution, and vagueness. But Mr. Carlton lacks standing to assert these claims because his injury cannot be redressed by this cour t 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 Ado ption Center— they implicate the rights of the Adoptive Parents. So despite the fact that Mr. Carlton’s constitutional claims may h ave merit, 15 he lacks standing to bring them because they are not r edressable 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” requir ement, we have repeatedly recognized that a “justiciable controver sy” is the

15 Of particular potential merit is Mr. Carlton’s con tention, 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.C ARLTON v . B ROWN

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 we ll as ‘the authority to enforce any valid judgment,

decree or order.’ 17

But “[i]n the absence of any justiciable controvers y between adverse parties, the courts are without jurisdictio n.” 18

¶30 Thus, in order for us to retain jurisdiction over t his appeal, Mr. Carlton is required to show that there is a justiciable controversy before us. The concept of “justiciabili ty” implicates various categories of cases and doctrines that impo se limits on our jurisdiction, including advisory opinions, feigned and collusive cases, standing, ripeness, mootness, political ques tions, and administrative questions. 19 For example, with respect to ripeness we have recently observed that “[i]n order to const itute a justiciable controversy, a conflict over the applic ation of a legal provision must have sharpened into an actual or imm inent clash of legal rights and obligations between the parties thereto.” 20

¶31 In this case, we agree with the district court’s ul timate conclusion that Mr. Carlton lacked standing to brin g his constitutional claims, although we reach that concl usion by a

16 Shipman v. Evans , 2004 UT 44, ¶¶ 32–33, 100 P.3d

1151, abrogated on other grounds by Utahns For Better Den tal HealthDavis, 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. U tah 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).Cite as: 2014 UT 6

Opinion of the Court

13 different road. As noted above, “standing” comprise s three components: injury, causation, and redressability. 21 Although Mr. Carlton has adequately shown the former two, he cannot show the latter because “redressability” requires t hat the injury be “redressable by a favorable ruling.” 22

¶32 Unfortunately, the district court prevented Mr. Car lton from joining the Adoptive Parents in this case when it denied his

Motion for Leave to File Second Amended Petition. C onsequently, Mr. Carlton lacks standing to bring these claims be cause his injury—the termination of his parental rights—is no t redressable by a favorable ruling from this court. This is so because even if we were to agree with Mr. Carlton’s arguments again st the constitutionality of the Act, we simply could not g rant the relief he requests, which is that his parental rights to t he child be reinstated and the adoption overturned. Neither Ado ption Center nor Ms. Brown has any rights to relinquish, 23 and we certainly do not have the authority to infringe upon the Adoptiv e Parents’ rights to the child since they are not parties to t his 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 co nstitutional challenges set forth in his Amended Petition.

¶33 But despite the fact that we agree with the distric t court’s conclusion that Mr. Carlton lacks standing to asser t the constitutional claims as they are presently pled, w e nevertheless

reverse its decision to dismiss those claims becaus e we conclude that the district court erroneously denied Mr. Carl ton’s Motion for

Leave to File Second Amended Petition. The district court denied this motion on the basis of futility, but it is cle ar 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 c ourt 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 bound s of its authority by directing the actions of a nonparty”).C ARLTON v . B ROWN

Opinion of the Court

14 his proposed Second Amended Petition that Mr. Carlt on was attempting to add the Adoptive Parents, which, as w e just noted, would have granted him standing to bring the consti tutional
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] sh all be freely given when justice so requires.” And in his Motion for Leave to File Second Amended Petition, Mr. Carlton argued, a mong other things, that no prejudice would result from the ame ndment because a trial had not yet been scheduled and no f ormal 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 t he case with the instruction that the district court grant Mr. Carlt on leave to amend his petition. And because it is clear that Mr. Carl ton’s Second Amended Petition would have cured the standing issu e discussed
above, we also reverse the district court’s dismiss al of the

constitutional claims and remand this case to the d istrict 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 t ort 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 conspir acy, (5) intentional infliction of emotional distress (IIED), and (6) ne gligent infliction
of emotional distress. In its order, the district c ourt 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 to rt claims for failure to state a claim upon which relief could be granted , except for the claim for IIED against Adoption Center. As discusse d below, because Mr. Carlton has failed to properly serve Ms . Brown with the Amended Complaint, either personally or via alt ernative
service, the district court’s dismissal of the IIED claim againstCite as: 2014 UT 6

Opinion of the Court

15 Ms. Brown was proper. Accordingly, we affirm the di smissal of

this claim. But we reverse the district court’s dis missal of Mr. Carlton’s IIED claim against Adoption Center. T he 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 th e question of whether Mr. Carlton may be able to establish his pa rental rights depends upon the outcome of the constitutional chal lenges that were also erroneously dismissed by the district cou rt. Accordingly, we reverse the dismissal of Mr. Carlto n’s IIED claim against Adoption Center and remand this case for fu rther proceedings consistent with this opinion.

A. Mr. Carlton’s Fraud Claim Fails Because There Was N o Detrimental Reliance

¶36 The district court dismissed Mr. Carlton’s fraud cl aims due to his failure to plead fraud with particularit y, 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 chi ld. Mr. Carlton argues that the district court’s dismissal was impr oper because “[t]here was considerable evidence of . . . fraud i n 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) wh ich 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 part y, 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 mar ks omitted).C ARLTON v . B ROWN

Opinion of the Court

16 ¶38 Additionally, rule 9(b) of the Utah Rules of Civil Procedure requires that “[i]n all averments of frau d or mistake, the circumstances constituting fraud or mistake sha ll be stated with particularity.” This means that “a complaint c annot survive dismissal by pleading mere conclusory allegations unsupported . . . by a recitation of relevant surro unding facts.” 26 In other words, “the mere recitation by a plaintiff of the elements of fraud in a complaint does not satisfy the partic ularity requirement” 27 —only “a sufficiently clear and specific descriptio n 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 th at even if the allegations in Mr. Carlton’s Amended Petitio n were sufficient to satisfy the requirement to plead frau d with particularity, his fraud claim would still fail bec ause he has failed to plead detrimental reliance on such statements. A lthough Mr. Carlton alleges that his failure to file a time ly petition to establish paternity was due to Ms. Brown’s fraud, i t is undisputed

that the fraudulent statements he identifies occurr ed after Ms. Brown had already relinquished her rights to Ad option 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, w e affirm the
district court’s dismissal of this claim, but witho ut prejudice.

B. Tortious Interference with Parental Rights

¶40 Mr. Carlton acknowledges that there currently is no cause of action for tortious interference with parental r ights but nevertheless urges us to recognize that cause of ac tion. We decline

to do so for several reasons.

¶41 Mr. Carlton has not given us adequate reason to ado pt a new tort. While it may be true that we have “the ab ility 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 al ready exist, based on sound principles of fairness and equity,” Mr. Carlton does not cite to any legal authority for his positi on, does not develop any preexisting authority, nor does he adeq uately demonstrate how the remedies that are currently ava ilable 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 V irginia Supreme Court decision wherein the tort was recognized, ref erring to its “high persuasive value” but then fails to indicate why we should view it as persuasive or adopt the standard used th erein. Therefore, due primarily to the inadequacy of Mr. C arlton’s brief, we decline to consider whether this tort ought to b e recognized in

Utah and affirm the district court’s dismissal of t his claim, with prejudice.

C. Pattern of Unlawful Activity Claim

¶42 Mr. Carlton argues that Adoption Center is liable f or a pattern of unlawful activity because it “intentiona lly keep[s birth fathers] ‘in the dark’ about adoption plans” and “f elonious[ly gifts] apartment, rent, utilities, various amenitie s, and most astonishingly ‘post placement’ case money of $3,000 - $4,000 to

birth mothers.” The district court dismissed this c laim 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 leas t

three episodes of unlawful activity, which episodes
are not isolated, but have the same or similar purposes, results, participants, victims, or method s of commission, or otherwise are interrelated by distinguishing characteristics. Taken together, the episodes shall demonstrate continuing unlawful

29 U TAH C ODE §§ 76-10-1601–76-10-1609.C ARLTON v . B ROWN

Opinion of the Court

18 conduct and be related either to each other or to t he enterprise. 30

¶44 With respect to this definition, we have clarified that “[t]he proper test for determining whether there wa s a pattern of unlawful activity is whether there was ‘a series of related predicates extending over a substantial per iod 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 sect ion, the elements

of each claim or cause of action shall be stated wi th particularity against each defendant.” 32 This requirement is imposed “in order for the court to determine whether the facts as ple aded are sufficient to show that the alleged activity would be illegal in Utah and would fall into one of the [statute’s] enu merated categories.” 33 Accordingly, we affirm the district court’s dismis sal
of this claim for failure to state a claim, but dis miss it without prejudice.

¶46 The district court correctly observed that Mr. Carl ton’s Amended Petition failed to (1) plead his claim for pattern of unlawful activity with particularity and (2) demons trate “at least three episodes” of unlawful activity. Indeed, on ap peal 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 objectin g to the adoption of their children.” He does not state with specificity who, when, where, or what has happened in furtheran ce of this scheme, nor has he shown how this activity satisfie s 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 U TAH C ODE § 76-10-1605(7).

33 Holbrook v. Master Prot. Corp. , 883 P.2d 295, 302 (Utah Ct. App. 1994) (internal quotation marks omitted).

34 U TAH C ODE § 76-10-1602(4)(a)–(jjjj).Cite as: 2014 UT 6

Opinion of the Court

19 ¶47 The district court also correctly noted that even i f Mr. Carlton had adequately pled this claim with par ticularity, the actions he complains about were not unlawful. Mr. C arlton 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 ri ght to notification of a pending adoption. Furthermore, Mr . Carlton’s second suggestion, namely that Adoption Center “fel oniously” gives support to birth mothers, is also patently fa lse 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. Car lton argues that “[i]n light of the pleadings and eviden ce presented . . . the Court [should] take action in this case to reve rse the lower court.” Unfortunately, he does not inform us to whi ch pleadings or evidence he is referring. Nor does he set forth the legal elements of this cause of action using relevant cas e 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 th is cause of action. Accordingly, we refuse to consider this claim on ap peal 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. Bro wn and Adoption Center. We agree with Mr. Carlton with res pect to his claim asserted against Adoption Center, but disagre e with respect to the claim asserted against Ms. Brown.

¶50 In order to state a claim for IIED, a plaintiff mus t show

that the defendant

35 See id . § 76-7-203(1)(a).C ARLTON v . B ROWN

Opinion of the Court

20 intentionally engaged in some conduct toward the plaintiff, (a) with the purpose of inflicting emoti onal 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 outra ge or revulsion; it must be more than unreasonable, unkin d, or

unfair.” 37 And finally, “[w]here reasonable men may differ, i t is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has be en sufficiently extreme and outrageous to result in liability.” 38

1. The District Court’s Dismissal of the IIED Claim Br ought Against Ms. Brown Was Proper Because She Was not Se rved

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 c ourt to acquire jurisdiction, there must be a proper issuan ce and service

of summons.” 39 In his brief, Mr. Carlton admits that Ms. Brown

has not been served with the Amended Petition: “Cou nsel for [Adoption Center] stated to the undersigned counsel in an email that [Adoption Center’s] social worker spoke with B rown 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.Cite as: 2014 UT 6

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 whe re 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. Carlt on did not file a motion “requesting an order allowing service by p ublication or by some other means” 40 and has not demonstrated that service has been effectuated on Ms. Brown, either personall y or by courtordered alternative means. 41 Therefore, the district court’s dismissal of this claim was justified due to ineffe ctive service, and, accordingly, we affirm its dismissal, but without p rejudice.

2. Because We Conclude that Mr. Carlton’s Constitution al Challenges Were Erroneously Dismissed, the District Court’s Reason for Dismissing the IIED Claim Against Adopti on Center Is Now Inadequate

¶54 The district court stated its primary reason for di smissing Mr. Carlton’s IIED claim against Adoption Center as follows:

Because [Mr.] Carlton did not establish his parenta l 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 U TAH R. C IV

. P. 4(d)(4)(A).

41 See Jackson Constr. Co. , 2004 UT 89, ¶ 22 (“Once alternative service is authorized, it must be reasonably calcul ated, under all the circumstances, to apprise the interested partie s of the pendency of the action to the extent reasonably pos sible or practicable.” (internal quotation marks omitted)).C ARLTON v . B ROWN

Opinion of the Court

22 [Mr.] Carlton’s [tort] claims are without merit, an d Adoption Center’s motion [to dismiss] is granted.

Because we today reverse the district court’s dismi ssal of Mr. Carlton’s constitutional claims, the question o f whether he may be able to “establish his parental rights to th e child” remains open. Accordingly, we reverse the district court’s dismissal of Mr. Carlton’s claim for IIED against Adoption Cente r.

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 inflic tion of emotional distress, the plaintiff must show the fol lowing:

If the actor unintentionally causes emotional distr ess 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. Inst ead, 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 men tal illness may support the [negligent infliction of emotional dist ress] cause of action” and that the physical or mental illness mus t be such that “a reasonable [person], normally constituted, would be unable to adequately cope with the mental stress engendered b y 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 inflict ion of emotional
distress because, in addition to the fact that Ms. Brown was not properly served with the Amended Petition, Mr. Carl ton failed to allege that the distress he claimed to have suffere d 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 pre judice.

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 “tha t an order issue declaring any previous termination of [ Mr. Carlton’s] parental rights, and/or any adoption to be set asid e, and further that any statute upon which [Adoption Center and Ms . Brown] may rely to ostensibly justify their wrongful condu ct . . . be declared unconstitutional.” As justification for su ch an order, Mr. Carlton asserted the same arguments mentioned a bove, namely the facial and as applied unconstitutionalit y of the Act, violations of due process and equal protection, vio lation 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 ac tion, since their rights would be directly or indirectly implicated b y the grant of declaratory relief Mr. Carlton seeks. Therefore, du e process requires that the Adoptive Parents be given the opp ortunity to be heard with respect to this issue. Accordingly, we d ecline to

address the merits of this claim and remand it to t he district court for further proceedings consistent with this opinio n.

CONCLUSION

¶60 For the foregoing reasons, we reverse the district court’s dismissal of Mr. Carlton’s constitutional challenge s 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 sta te a claim, with the exception of Mr. Carlton’s claim for intentiona l infliction of emotional distress against Ms. Brown and Adoption C enter. Although Mr. Carlton adequately pled the former, be cause he has not yet served Ms. Brown with the Amended Petition we must dismiss this claim for lack of jurisdiction. And si nce we now reverse the district court’s dismissal of Mr. Carlt on’s
constitutional claims, the dismissal of his claim f or IIED againstC ARLTON v . B ROWN

Opinion of the Court

24 Adoption Center must also be reversed, for the reas ons stated

above. We now remand this case to the district cour t for further proceedings consistent with this opinion.