This opinion is subject to revision before final 

publication in the Pacific Reporter 

2014 UT 6

IN THE

SUPREME COURT OF THE STATE OF UTAH

CHRISTOPHER CARLTON, 

Appellant,

v. 

SHALANDA BROWN and

THE ADOPTION CENTER OF CHOICE, INC.,

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, for appellees 

CHIEF JUSTICE DURRANT authored the opinion of the Court, in 

which ASSOCIATE CHIEF JUSTICE NEHRING, 

JUSTICE PARRISH, JUSTICE LEE, and JUDGE ROTH joined. 

Having recused herself, JUSTICE DURHAM 

does not participate herein; Court of Appeals 

JUDGE STEPHEN L. ROTH sat. 

CHIEF JUSTICE DURRANT, opinion of the Court: 

INTRODUCTION 

¶1 In this case, Christopher Carlton asks us to once again 

consider both the constitutionality of the Utah Adoption Act (Act) 

as well as the extent of the rights it affords to putative fathers who 

wish to contest adoptions in Utah. Mr. Carlton argues first that 

the Act is unconstitutional, both facially and as applied to him, 

and second, that the district court erred when, based on a lack of 
CARLTON v. BROWN

Opinion of the Court 

2 

standing, it dismissed his Amended Verified Petition to Establish 

Paternity, which included his constitutional challenges to the Act 

as well as numerous tort claims. For the reasons set forth below, 

we affirm in part and reverse in part. 

¶2 First, although we disagree with the district court’s 

reasoning regarding Mr. Carlton’s lack of standing to assert the 

constitutional claims, given the current state of the pleadings we 

would ultimately reach the same conclusion, albeit for different 

reasons. Nevertheless, because we also conclude that it was error 

for the district court to deny Mr. Carlton leave to amend his 

petition—which would have cured the standing defects identified 

below—we conclude that the district court’s dismissal of 

Mr. Carlton’s constitutional claims was also erroneous. 

Accordingly, we reverse the district court’s dismissal of 

Mr. Carlton’s constitutional claims and on remand we instruct the 

district court to allow Mr. Carlton to amend his petition. 

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

Mr. Carlton’s tort claims due to his failure to state a claim upon 

which relief could be granted, with the exception of one of his 

claims for intentional infliction of emotional distress. Mr. Carlton 

asserted an IIED claim against both Shalanda Brown and The 

Adoption Center of Choice, Inc. (Adoption Center). As to the 

former, we affirm the district court’s dismissal due to inadequate 

service of process. But as to the latter, we reverse because the 

district court’s primary reason for dismissing this claim—Mr. 

Carlton’s failure to establish parental rights under the Act—turns 

on the outcome of the constitutional issues that were erroneously 

dismissed by the district court. Accordingly, we remand this case 

to the district court for further proceedings consistent with this 

opinion. 

BACKGROUND

¶4 Mr. Carlton and Ms. Brown are both residents of 

Pennsylvania and have never been married. In 2009, Mr. Carlton 

and Ms. Brown were involved in a romantic relationship that 

resulted in Ms. Brown becoming pregnant. The relationship 

appears to have continued until May 2010 when, just four weeks 

prior to her delivery date, Ms. Brown mysteriously left 

Mr. Carlton without any notification or indication as to her 

whereabouts. Despite the close proximity to her due date, 

Mr. Carlton did not take any action in either Utah or Pennsylvania 

to protect his parental rights to the unborn child. 
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Opinion of the Court 

3 

¶5 Unbeknownst to Mr. Carlton, Ms. Brown had traveled to 

Utah where she gave birth to a baby girl on June 24, 2010. On June 

26, 2010, Ms. Brown relinquished her parental rights to Adoption 

Center. That same day, Ms. Brown also executed a Birth Father 

Affidavit wherein she stated that she was unmarried and refused 

to identify the birth father. Instead, she stated that the birth father 

had been abusive towards her and had tried to use the child as a 

tool to keep her in a relationship with him. 

¶6 After giving birth, Ms. Brown returned to Pennsylvania 

and allegedly tried to “rekindle” her relationship with 

Mr. Carlton. But when Mr. Carlton asked Ms. Brown about the 

child’s whereabouts, she informed him that the child was a boy 

and that he had died. Aggrieved, Mr. Carlton inquired about the 

location of the child’s grave, but Ms. Brown refused to disclose it, 

and when Mr. Carlton continued to press this inquiry, Ms. Brown 

sued him for harassment.1 It is undisputed that these 

communications occurred after Ms. Brown had already

relinquished her parental rights to Adoption Center. 

¶7 Meanwhile, on June 29, 2010, and July 20, 2010, Adoption 

Center requested and received verifications from the Utah Office 

of Vital Records and Statistics confirming that no putative father 

was registered with respect to the child. Adoption Center also 

confirmed that, as of October 15, 2010, the Pennsylvania 

Department of Public Welfare had not received an 

acknowledgement or claim of paternity. Consequently, Adoption 

Center commenced adoption proceedings for the child. 

¶8 Once it became apparent that he was not going to get any 

information from Ms. Brown concerning the child, Mr. Carlton 

filed a paternity action in Pennsylvania on November 5, 2010. 

Mr. Carlton’s action was sent to mediation, and on November 23, 

2010, Ms. Brown “broke down” and informed Mr. Carlton that the 

child was actually a girl, that she was still alive, and that she had 

been given up for adoption in Utah. That same day, the 

Pennsylvania court dismissed Mr. Carlton’s action for lack of 

jurisdiction. 

1 The case was ultimately dismissed on the grounds that there 

was a legitimate basis for these communications and that 

therefore they could not be classified as “harassment” as a matter 

of law. 
CARLTON v. BROWN

Opinion of the Court 

4 

¶9 Back in Utah, the adoption proceedings for the child were 

finalized on December 29, 2010. It is undisputed that, as of this 

date, no paternity action was pending in any state. 

¶10 Mr. Carlton then hired local counsel in an attempt to 

intervene in the adoption proceedings. Counsel prepared a 

motion to intervene in January 2011 but could not identify the 

proper case in which to file the motion. Consequently, Mr. Carlton 

began seeking replacement counsel and hired current counsel in 

March 2011. That counsel immediately filed a Verified Petition to 

Establish Paternity (Petition) for Mr. Carlton on March 8, 2011. 

¶11 Mr. Carlton amended his Petition on May 2, 2011 

(Amended Petition) in order to add Adoption Center as a party. 

He also added the following claims to the Amended Petition: (1) a 

request to set aside the adoption; (2) constitutional challenges to 

the Act; (3) tort claims against both Adoption Center and 

Ms. Brown for fraud, tortious interference with parental rights, 

unlawful activity, civil conspiracy, intentional infliction of 

emotional distress, and negligent infliction of emotional distress; 

and (4) a request for declaratory relief. Mr. Carlton admits that 

Ms. Brown has been served only with the Petition, not the 

Amended Petition, and that she has “not [been] involved in these 

proceedings.” 

¶12 In response to the Amended Petition, Adoption Center 

filed a Motion to Dismiss or, Alternatively, for Summary 

Judgment (Motion) on May 24, 2011. Mr. Carlton opposed the 

Motion. Additionally, he filed motions for leave to amend the 

Amended Petition and for a rule 56(f) continuance. The district 

court conducted a hearing on all of these motions on 

November 14, 2011, and entered its order granting Adoption 

Center’s Motion and dismissing all of Mr. Carlton’s motions, as 

well as his Amended Petition, on February 3, 2012. Mr. Carlton 

timely appealed. As this case was certified to us by the Court of 

Appeals, we have jurisdiction pursuant to Utah Code section 78A3-102(3)(b). 

STANDARD OF REVIEW

¶13 “A district court’s grant of a motion to dismiss based 

upon the allegations in the plaintiff’s complaint[] presents a 
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Opinion of the Court 

5 

question of law that we review for correctness.”2 Additionally, 

“[c]onstitutional issues, including questions regarding due 

process, are questions of law that we review for correctness.”3

Finally, “[w]e apply an abuse of discretion standard in reviewing 

the denial of a rule 56(f) motion” and a motion for leave to amend, 

“and overturn . . . only if the denial of the motion exceed[s] the 

limits of reasonability.”4

ANALYSIS

¶14 In his Amended Petition, Mr. Carlton raised several

constitutional challenges to the Act based primarily on alleged 

violations of both state and federal guarantees to due process and 

equal protection. He also asserted six tort claims against 

Ms. Brown and Adoption Center. The district court dismissed all 

of these claims on the ground that Mr. Carlton lacked standing to 

assert them, or, in the alternative, that he had failed to state a 

claim upon which relief could be granted.5 The district court also 

2 Osguthorpe v. Wolf Mountain Resorts, L.C., 2010 UT 29, ¶ 10, 

232 P.3d 999 (alteration in original) (internal quotation marks 

omitted). 

3 Salt Lake City Corp. v. Jordan River Restoration Network, 2012 

UT 84, ¶ 47, 299 P.3d 990 (internal quotation marks omitted). 

4 Petersen v. Riverton City, 2010 UT 58, ¶ 25, 243 P.3d 1261 (third 

alteration in original) (internal quotation marks omitted); Hudgens 

v. Prosper, Inc., 2010 UT 68, ¶ 15, 243 P.3d 1275 (“We review a 

district court’s denial of leave to amend for an abuse of 

discretion.”). 

5 The district court’s alternative holding actually treated 

Adoption Center’s Motion to Dismiss as a motion for summary 

judgment pursuant to rule 56 of the Utah Rules of Civil 

Procedure. And in granting the motion, the district court 

expressly dismissed Mr. Carlton’s claims with prejudice. This was 

error, however, because the district court did not give the parties 

notice of the conversion, nor did it allow the parties to 

supplement the record under rule 56. Oakwood Village LLC v. 

Albertsons, Inc., 2004 UT 101, ¶ 12, 104 P.3d 1226 (observing that 

“[r]ule 12(b) mandates that a motion to dismiss shall be converted 

into one for summary judgment if ‘matters outside the pleadings 

are presented to and not excluded by the court’ and all parties 

(continued...) 
CARLTON v. BROWN

Opinion of the Court 

6 

dismissed Mr. Carlton’s Motion for Leave to File Second 

Amended Petition and for a rule 56(f) continuance because it 

reasoned that, given Mr. Carlton’s lack of standing, both motions 

would be futile. Mr. Carlton argues that both of these conclusions 

were erroneous. 

¶15 Although we disagree with the district court’s reasoning 

regarding Mr. Carlton’s lack of standing to assert the 

constitutional claims, we agree with its ultimate conclusion given 

the current state of the pleadings. But because Mr. Carlton’s 

proposed amendment to his petition would have cured these 

defects, and because we conclude that his motion to amend was 

improperly denied by the district court, we hold that the district 

court’s dismissal of the constitutional claims was also erroneous. 

Accordingly, we reverse the district court’s dismissal of the 

constitutional claims and remand this case with the instruction 

that Mr. Carlton be granted leave to amend his petition. 

¶16 With respect to the tort claims, we agree with the district 

court’s decision to dismiss these claims on the ground that 

Mr. Carlton has failed to state a claim upon which relief could be 

granted, with the exception of Mr. Carlton’s claims for intentional 

infliction of emotional distress against both Ms. Brown and 

 

receive ‘reasonable opportunity to present all material made pertinent to 

such a motion by Rule 56’” (emphasis added) (quoting UTAH R. CIV.

P. 12(b))). In fact, the district court expressly denied Mr. Carlton’s 

request to submit additional evidence pursuant to rule 56. 

Accordingly, we review the district court’s alternative holding 

under the rule 12(b)(6) standard, and affirm only if “without 

considering material outside the complaint, we conclude that 

[Mr. Carlton has] failed to state a claim upon which relief can be 

granted.” Tuttle v. Olds, 2007 UT App 10, ¶ 10, 155 P.3d 893. We 

will also specifically indicate on a claim-by-claim basis whether 

we are affirming the district court’s dismissal with or without 

prejudice, recognizing the general rule that “dismissal under Rule 

12(b)(6) generally is not final or on the merits and the court 

normally will give plaintiff leave to file an amended complaint” 

except in situations where “it appears to a certainty that plaintiff 

cannot state a claim,” in which case dismissal with prejudice is 

appropriate. Alvarez v. Galetka, 933 P.2d 987, 991 (Utah 1997) 

(internal quotation marks omitted). 
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Opinion of the Court 

7 

Adoption Center. Because we conclude that Ms. Brown was not 

properly served with the Amended Petition, we affirm the district 

court’s dismissal of the claim on that ground. But with respect to 

Adoption Center, we conclude that the district court’s reason for 

dismissing this claim—Mr. Carlton’s failure to establish parental 

rights to the child—is inadequate, since the question of whether 

Mr. Carlton actually so failed depends upon the outcome of the 

constitutional challenges that were also erroneously dismissed by 

the district court. Accordingly, we reverse the district court’s 

dismissal of this claim and remand this case for further 

proceedings consistent with this opinion. 

I. INADEQUATE BRIEFING 

¶17 Before turning to the issues raised by Mr. Carlton’s 

appeal, we first consider Adoption Center’s suggestion that we 

“either disregard portions of [Mr. Carlton’s brief] or strike the 

brief in its entirety, and award attorney fees as appropriate.” 

¶18 “Under our rules of appellate procedure, we need not 

address briefs that fail to comply with rule 24. Specifically, rule 

24(k) states that [b]riefs which are not in compliance may be 

disregarded or stricken, on motion or sua sponte by the court. 

And we have discretion to not address an inadequately briefed 

argument.”6 While we recognize that adoption proceedings are 

extremely time-sensitive, we take this opportunity to reemphasize 

the fact that “this court is not a depository in which the appealing 

party may dump the burden of argument and research.”7 Indeed, 

it is the responsibility of counsel to include “the contentions and 

reasons of the appellant with respect to the issues presented, 

including the grounds for reviewing any issue not preserved in 

the trial court, with citations to the authorities, statutes, and parts 

of the record relied on.”8 Furthermore, simply providing “bald 

citation[s] to authority” is not sufficient to discharge this 

6 Broderick v. Apartment Mgmt. Consultants, L.L.C., 2012 UT 17, 

¶ 11, 279 P.3d 391 (alteration in original) (internal quotation marks 

omitted). 

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

quotation marks omitted). 

8 UTAH R. APP. P. 24(a)(9). 
CARLTON v. BROWN

Opinion of the Court 

8 

responsibility.9 Rather, counsel must both develop and provide 

“reasoned analysis based on that authority.”10

¶19 In this case, Mr. Carlton’s brief was confusing and largely 

unhelpful, due mainly to the fact that he devoted over thirty 

pages to a summary of the “facts” of the case, which included a 

lengthy summary of irrelevant telephone conversations that 

occurred between counsel’s wife, Adoption Center, and two other 

adoption agencies in Utah that are not parties to this case. Having 

spent the majority of his page allotment on such an endeavor, 

Mr. Carlton was then forced to discuss five constitutional 

challenges to the Act, six different tort claims (including a claim 

for fraud, which must be pled with particularity11), and the 

district court’s dismissal of his motion for leave to amend and 

motion for a rule 56(f) continuance in just twenty-seven pages. 

¶20 As a result, most of Mr. Carlton’s arguments were not 

well developed, if they were developed at all. For instance, 

Mr. Carlton failed to cite any case law from any jurisdiction in 

order to set forth the elements of, or the legal standards for, his 

claims for fraud, tortious interference with parental rights, pattern 

of unlawful activity, civil conspiracy, intentional infliction of 

emotional distress, negligent infliction of emotional distress, or 

declaratory relief. Where cases are cited, there is no analysis of 

those cases, nor any reasoned application of those cases to the 

facts of this case. Furthermore, in areas where there are cases that 

are directly on point (e.g., claims for violation of due process and 

equal protection), Mr. Carlton makes no attempt to distinguish 

them. Instead, he simply recognizes their existence and then 

asserts that “such cases should be overturned” without arguing 

why. 

9 Thomas, 961 P.2d at 305. 

10 Id. 

11 UTAH R. CIV. P. 9(b); Williams v. State Farm Ins. Co., 656 P.2d 

966, 971 (Utah 1982) (stating that the relevant surrounding facts 

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

show what facts are claimed to constitute such charges” (internal 

quotation marks omitted)). 
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Opinion of the Court 

9 

¶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 

11 

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 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. 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 
Cite as: 2014 UT 6 

Opinion of the Court 

15 

Ms. Brown was proper. Accordingly, we affirm the dismissal of 

this claim. But we reverse the district court’s dismissal of 

Mr. Carlton’s IIED claim against Adoption Center. The district 

court’s ground for dismissal of that claim was Mr. Carlton’s 

failure to establish parental rights to the child. Our opinion 

renders this ground inadequate, however, because the question of 

whether Mr. Carlton may be able to establish his parental rights 

depends upon the outcome of the constitutional challenges that 

were also erroneously dismissed by the district court. 

Accordingly, we reverse the dismissal of Mr. Carlton’s IIED claim 

against Adoption Center and remand this case for further 

proceedings consistent with this opinion. 

A. Mr. Carlton’s Fraud Claim Fails Because There Was No 

Detrimental Reliance

¶36 The district court dismissed Mr. Carlton’s fraud claims 

due to his failure to plead fraud with particularity, and because 

even if the cause of action was properly pled, Mr. Carlton had not 

suffered any injury, since the fraud occurred after Ms. Brown had 

already relinquished her parental rights to the child. Mr. Carlton 

argues that the district court’s dismissal was improper because 

“[t]here was considerable evidence of . . . fraud in the case.” We 

disagree and affirm the district court’s dismissal, except that we 

affirm the dismissal without prejudice. 

¶37 In order to properly assert a claim for fraud, the plaintiff 

must show the following nine elements: 

(1) a representation; (2) concerning a presently 

existing material fact; (3) which was false; (4) which 

the representor either (a) knew to be false, or 

(b) made recklessly, knowing that he had 

insufficient knowledge upon which to base such 

representation; (5) for the purpose of inducing the

other party to act upon it; (6) that the other party, 

acting reasonably and in ignorance of its falsity; 

(7) did in fact rely upon it; (8) and was thereby 

induced to act; (9) to his injury and damage.25

25 Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 53 n.38, 201 

P.3d 966 (emphasis omitted) (internal quotation marks omitted). 
CARLTON v. BROWN

Opinion of the Court 

16 

¶38 Additionally, rule 9(b) of the Utah Rules of Civil 

Procedure requires that “[i]n all averments of fraud or mistake, 

the circumstances constituting fraud or mistake shall be stated 

with particularity.” This means that “a complaint cannot survive 

dismissal by pleading mere conclusory allegations 

unsupported . . . by a recitation of relevant surrounding facts.”26

In other words, “the mere recitation by a plaintiff of the elements 

of fraud in a complaint does not satisfy the particularity 

requirement”27—only “a sufficiently clear and specific description 

of the facts underlying the [plaintiff’s] claim of [fraud] will satisfy 

the requirements of rule 9(b).”28

¶39 We agree with the district court’s determination that even 

if the allegations in Mr. Carlton’s Amended Petition were 

sufficient to satisfy the requirement to plead fraud with 

particularity, his fraud claim would still fail because he has failed 

to plead detrimental reliance on such statements. Although 

Mr. Carlton alleges that his failure to file a timely petition to 

establish paternity was due to Ms. Brown’s fraud, it is undisputed 

that the fraudulent statements he identifies occurred after

Ms. Brown had already relinquished her rights to Adoption 

Center. Thus, by the time the statements were made, Mr. Carlton’s 

petition would still have been untimely under Utah law, and thus 

he cannot show detrimental reliance. Accordingly, we affirm the 

district court’s dismissal of this claim, but without prejudice. 

B. Tortious Interference with Parental Rights

¶40 Mr. Carlton acknowledges that there currently is no cause 

of action for tortious interference with parental rights but 

nevertheless urges us to recognize that cause of action. We decline 

to do so for several reasons. 

¶41 Mr. Carlton has not given us adequate reason to adopt a 

new tort. While it may be true that we have “the ability and 

26 State v. Apotex Corp., 2012 UT 36, ¶ 21, 282 P.3d 66 (alteration 

in original) (internal quotation marks omitted). 

27 Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 16, 70 P.3d 

35. 

28 Hill v. Allred, 2001 UT 16, ¶ 14, 28 P.3d 1271 (first alteration 

in original) (internal quotation marks omitted). 
Cite as: 2014 UT 6 

Opinion of the Court 

17 

discretion to fashion a remedy where one may not already exist, 

based on sound principles of fairness and equity,” Mr. Carlton 

does not cite to any legal authority for his position, does not 

develop any preexisting authority, nor does he adequately 

demonstrate how the remedies that are currently available to him 

are inadequate to address his alleged injuries. In fact, Mr. Carlton 

does not even propose or discuss any legal standard for the tort he 

wishes us to adopt. Instead, he merely cites to a Virginia Supreme 

Court decision wherein the tort was recognized, referring to its 

“high persuasive value” but then fails to indicate why we should 

view it as persuasive or adopt the standard used therein. 

Therefore, due primarily to the inadequacy of Mr. Carlton’s brief, 

we decline to consider whether this tort ought to be recognized in 

Utah and affirm the district court’s dismissal of this claim, with 

prejudice. 

C. Pattern of Unlawful Activity Claim

¶42 Mr. Carlton argues that Adoption Center is liable for a 

pattern of unlawful activity because it “intentionally keep[s birth 

fathers] ‘in the dark’ about adoption plans” and “felonious[ly 

gifts] apartment, rent, utilities, various amenities, and most 

astonishingly ‘post placement’ case money of $3,000 - $4,000 to 

birth mothers.” The district court dismissed this claim for failure 

to state a claim upon which relief could be granted. We affirm the 

district court’s dismissal, but without prejudice. 

¶43 Under Utah’s Pattern of Unlawful Activity Act (UPUA),29

the plaintiff must show injury due to a “pattern of unlawful 

activity,” which is defined by UPUA as follows: 

’Pattern of unlawful activity’ means engaging in 

conduct which constitutes the commission of at least 

three episodes of unlawful activity, which episodes 

are not isolated, but have the same or similar 

purposes, results, participants, victims, or methods 

of commission, or otherwise are interrelated by 

distinguishing characteristics. Taken together, the

episodes shall demonstrate continuing unlawful 

29 UTAH CODE §§ 76-10-1601–76-10-1609. 
CARLTON v. BROWN

Opinion of the Court 

18 

conduct and be related either to each other or to the 

enterprise.30

¶44 With respect to this definition, we have clarified that 

“[t]he proper test for determining whether there was 

a pattern of unlawful activity is whether there was ‘a series of 

related predicates extending over a substantial period of time’ or a 

demonstrated threat of continuing unlawful activity and not 

whether there were multiple schemes.”31 

¶45 Additionally, UPUA requires plaintiffs to plead all claims 

with particularity: “In all actions under this section, the elements 

of each claim or cause of action shall be stated with particularity 

against each defendant.”32 This requirement is imposed “in order 

for the court to determine whether the facts as pleaded are 

sufficient to show that the alleged activity would be illegal in 

Utah and would fall into one of the [statute’s] enumerated 

categories.”33 Accordingly, we affirm the district court’s dismissal 

of this claim for failure to state a claim, but dismiss it without 

prejudice. 

¶46 The district court correctly observed that Mr. Carlton’s 

Amended Petition failed to (1) plead his claim for pattern of 

unlawful activity with particularity and (2) demonstrate “at least 

three episodes” of unlawful activity. Indeed, on appeal 

Mr. Carlton merely alleges that Adoption Center is involved in an 

“ill-conceived scheme to prevent birth fathers from exercising 

their parental rights and otherwise timely objecting to the 

adoption of their children.” He does not state with specificity 

who, when, where, or what has happened in furtherance of this 

scheme, nor has he shown how this activity satisfies UPUA’s 

definition of “unlawful activity.”34

30 Id. § 76-10-1602(2) (emphasis added). 

31 Hill v. Estate of Allred, 2009 UT 28, ¶ 41, 216 P.3d 929 (quoting 

H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 242 (1989)). 

32 UTAH CODE § 76-10-1605(7). 

33 Holbrook v. Master Prot. Corp., 883 P.2d 295, 302 (Utah Ct. 

App. 1994) (internal quotation marks omitted). 

34 UTAH CODE § 76-10-1602(4)(a)–(jjjj). 
Cite as: 2014 UT 6 

Opinion of the Court 

19 

¶47 The district court also correctly noted that even if 

Mr. Carlton had adequately pled this claim with particularity, the 

actions he complains about were not unlawful. Mr. Carlton 

alleges that Adoption Center is guilty of fraud for keeping birth 

fathers “in the dark,” but this allegation ignores the fact that Utah 

law does not impose a duty upon Adoption Center to inform birth 

fathers who do not take action to preserve their right to 

notification of a pending adoption. Furthermore, Mr. Carlton’s 

second suggestion, namely that Adoption Center “feloniously” 

gives support to birth mothers, is also patently false since the Act 

permits Adoption Center to pay for certain expenses.

35 For these 

reasons, the district court correctly dismissed Mr. Carlton’s claim 

for pattern of unlawful activity, and, accordingly, we affirm its 

dismissal, without prejudice. 

D. Civil Conspiracy Claim

¶48 With respect to his civil conspiracy claim, Mr. Carlton 

argues that “[i]n light of the pleadings and evidence presented . . . 

the Court [should] take action in this case to reverse the lower 

court.” Unfortunately, he does not inform us to which pleadings 

or evidence he is referring. Nor does he set forth the legal 

elements of this cause of action using relevant case law or show 

how the district court erred in assessing the facts of this case in 

light of those elements. In short, Mr. Carlton does not, in any 

fashion, engage the district court’s analysis of this cause of action. 

Accordingly, we refuse to consider this claim on appeal due to 

inadequate briefing and affirm the district court’s dismissal, 

without prejudice. 

E. Intentional Infliction of Emotional Distress 

¶49 Mr. Carlton argues that the district court erred in

dismissing his claims for IIED against both Ms. Brown and 

Adoption Center. We agree with Mr. Carlton with respect to his 

claim asserted against Adoption Center, but disagree with respect 

to the claim asserted against Ms. Brown. 

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

that the defendant 

35 See id. § 76-7-203(1)(a). 
CARLTON v. BROWN

Opinion of the Court 

20 

intentionally engaged in some conduct toward the 

plaintiff, (a) with the purpose of inflicting emotional 

distress, or, (b) where any reasonable person would

have known that such would result; and his actions 

are of such a nature as to be considered outrageous

and intolerable in that they offend against the 

generally accepted standards of decency and 

morality.36

¶51 Furthermore, we have also observed that “[t]o be 

considered outrageous, the conduct must evoke outrage or 

revulsion; it must be more than unreasonable, unkind, or 

unfair.”37 And finally, “[w]here reasonable men may differ, it is 

for the jury, subject to the control of the court, to determine 

whether, in the particular case, the conduct has been sufficiently 

extreme and outrageous to result in liability.”38 

1. The District Court’s Dismissal of the IIED Claim Brought 

Against Ms. Brown Was Proper Because She Was not Served 

with the Amended Petition 

¶52 We conclude that the district court was correct to dismiss 

Mr. Carlton’s IIED claim against Ms. Brown because she was not 

properly served with the Amended Petition. “For a court to 

acquire jurisdiction, there must be a proper issuance and service 

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

has not been served with the Amended Petition: “Counsel for 

[Adoption Center] stated to the undersigned counsel in an email 

that [Adoption Center’s] social worker spoke with Brown on 

May 24, 2011, and Brown confirmed that she had not yet been 

served with the amended petition.” Mr. Carlton then states that 

36 Anderson Dev. Co. v. Tobias, 2005 UT 36, ¶ 55, 116 P.3d 323 

(internal quotation marks omitted). 

37 Cabaness v. Thomas, 2010 UT 23, ¶ 38, 232 P.3d 486 (internal 

quotation marks omitted). 

38 Oman v. Davis Sch. Dist., 2008 UT 70, ¶ 52, 194 P.3d 956 

(internal quotation marks omitted). 

39 Jackson Constr. Co. v. Marrs, 2004 UT 89, ¶ 10, 100 P.3d 1211. 
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Opinion of the Court 

21 

[s]ubsequent to [Adoption Center’s] communication 

with Brown, the Lycoming County Sheriff in 

Pennsylvania had [sic] been unable to serve Brown, 

on numerous occasions, even though her car was 

present at her home, where she was previously 

served with the original Verified Petition, and where 

she appeared to be home, peering out the window, 

but refused to come to the door. Efforts to serve 

Brown with the Amended Verified Petition were 

continuing for some time. 

¶53 Despite his belief that Ms. Brown may have been 

avoiding service of the Amended Petition, Mr. Carlton did not file 

a motion “requesting an order allowing service by publication or 

by some other means”40 and has not demonstrated that service 

has been effectuated on Ms. Brown, either personally or by courtordered alternative means.41 Therefore, the district court’s 

dismissal of this claim was justified due to ineffective service, and, 

accordingly, we affirm its dismissal, but without prejudice. 

2. Because We Conclude that Mr. Carlton’s Constitutional 

Challenges Were Erroneously Dismissed, the District Court’s 

Reason for Dismissing the IIED Claim Against Adoption 

Center Is Now Inadequate 

¶54 The district court stated its primary reason for dismissing 

Mr. Carlton’s IIED claim against Adoption Center as follows: 

Because [Mr.] Carlton did not establish his parental 

rights to the child prior to the mother’s 

relinquishment of all her parental rights, 

[Mr.] Carlton was not injured by the adoption, nor 

was he injured by the acts of the Adoption Center . . . . 

[Mr.] Carlton failed to take timely action prior to the 

adoption to demonstrate that he intended to assume 

his parental responsibilities. Therefore, 

40 UTAH R. CIV. P. 4(d)(4)(A). 

41 See Jackson Constr. Co., 2004 UT 89, ¶ 22 (“Once alternative 

service is authorized, it must be reasonably calculated, under all 

the circumstances, to apprise the interested parties of the 

pendency of the action to the extent reasonably possible or 

practicable.” (internal quotation marks omitted)). 
CARLTON v. BROWN

Opinion of the Court 

22 

[Mr.] Carlton’s [tort] claims are without merit, and 

Adoption Center’s motion [to dismiss] is granted. 

Because we today reverse the district court’s dismissal of 

Mr. Carlton’s constitutional claims, the question of whether he 

may be able to “establish his parental rights to the child” remains 

open. Accordingly, we reverse the district court’s dismissal of 

Mr. Carlton’s claim for IIED against Adoption Center. 

F. Negligent Infliction of Emotional Distress 

¶55 Finally, Mr. Carlton argues that the district court’s 

dismissal of his claim for negligent infliction of emotional distress 

against Adoption Center and Ms. Brown was in error. We 

disagree. 

¶56 In order to prevail on a claim for negligent infliction of 

emotional distress, the plaintiff must show the following: 

If the actor unintentionally causes emotional distress 

to another, he is subject to liability to the other for 

resulting illness or bodily harm if the actor 

(a) should have realized that his conduct involved 

an unreasonable risk of causing the distress, 

otherwise than by knowledge of the harm or peril of

a third person, and (b) from facts known to him, 

should have realized that the distress, if it were 

caused, might result in illness or bodily harm.42

¶57 We have held previously that it is not enough for a

plaintiff to merely allege emotional distress. Instead, she must 

prove that distress by means of severe physical or mental 

manifestations.43

42 Anderson Dev. Co., 2005 UT 36, ¶ 57 (internal quotation 

marks omitted). 

43 E.g., Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 975 

(Utah 1993) (observing that “either physical or mental illness may 

support the [negligent infliction of emotional distress] cause of 

action” and that the physical or mental illness must be such that 

“a reasonable [person], normally constituted, would be unable to 

adequately cope with the mental stress engendered by the 

circumstances of the case” (alteration in original) (internal 

quotation marks omitted)). 
Cite as: 2014 UT 6 

Opinion of the Court 

23 

¶58 Here, we conclude that the district court correctly

dismissed Mr. Carlton’s claim for negligent infliction of emotional 

distress because, in addition to the fact that Ms. Brown was not 

properly served with the Amended Petition, Mr. Carlton failed to 

allege that the distress he claimed to have suffered manifested 

itself through severe mental or physical symptoms. Therefore, we 

affirm the district court’s dismissal of this cause of action for 

failure to state a claim but dismiss it without prejudice. 

V. FOR THE REASONS STATED ABOVE, WE AFFIRM THE 

DISTRICT COURT’S DENIAL OF MR. CARLTON’S REQUEST 

FOR DECLARATORY RELIEF 

¶59 In his Amended Petition, Mr. Carlton requested “that an 

order issue declaring any previous termination of [Mr. Carlton’s] 

parental rights, and/or any adoption to be set aside, and further 

that any statute upon which [Adoption Center and Ms. Brown] 

may rely to ostensibly justify their wrongful conduct . . . be 

declared unconstitutional.” As justification for such an order, 

Mr. Carlton asserted the same arguments mentioned above, 

namely the facial and as applied unconstitutionality of the Act, 

violations of due process and equal protection, violation of Utah’s 

constitutional open courts provision, and vagueness. As set forth 

above, however, we cannot reach the merits of these claims until 

the child’s adoptive parents are parties to this action, since their 

rights would be directly or indirectly implicated by the grant of 

declaratory relief Mr. Carlton seeks. Therefore, due process 

requires that the Adoptive Parents be given the opportunity to be 

heard with respect to this issue. Accordingly, we decline to 

address the merits of this claim and remand it to the district court 

for further proceedings consistent with this opinion. 

CONCLUSION 

¶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 
CARLTON v. BROWN

Opinion of the Court 

24 

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.