Bryner v. Custodian of Records

2016 UT App 40
THE UTAH COURT OF APPEALS
ROGER BRYNER,
Appellant,
v.
CUSTODIAN OF RECORDS,
Appellee.
Per Curiam Decision
No. 20150685-CA
Filed March 3, 2016
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 140906706
Roger Bryner, Appellant Pro Se
Todd J. Godfrey and Bradley W. Christopherson,
Attorneys for Appellee
Before JUDGES J. FREDERIC VOROS JR., STEPHEN L. ROTH, and
MICHELE M. CHRISTIANSEN.
PER CURIAM:
¶1 Roger Bryner appeals the dismissal of his civil case
against the custodian of records for the Holladay Justice Court.
We affirm.
¶2 Bryner was a defendant in a traffic case in the Holladay
Justice Court. He filed a request under the Government Records
Access and Management Act (GRAMA), seeking documents
from his own case as well as sentencing documents in cases
involving other persons who had been charged with the same
offenses. He pursued appeals from the denial of his GRAMA
request. Ultimately, the Management Committee of the Utah
Judicial Council issued an order that granted Bryner’s appeal in
part and denied it in part.

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20150685-CA 2 2016 UT App 40
¶3 In September 2014, Bryner filed the civil complaint in this
case, claiming that the Holladay Justice Court did not comply
with the Management Committee’s order. On April 13, 2015, the
district court held a motion hearing at which Bryner was
allowed to appear by telephone. The district court stated that
Bryner must appear in court in person for future proceedings.
The district court set a trial date for June 8, 2015. The court reset
the motion hearing for April 27, 2015, and also ordered the
parties to be present on that date to engage in face-to-face
discussions in an effort to resolve the case. Bryner requested that
this discussion take place by telephone, which the court denied.
Bryner did not appear on April 27, 2015, and the court denied his
pending motion for summary judgment.
¶4 On April 30, 2015, Bryner filed a ‚motion to designate
defendant‛ in which he sought to amend his complaint to name
the court clerk of the Holladay Justice Court as a defendant. On
May 5, 2015, Bryner filed a motion to issue a subpoena to the
court clerk or ‚declare it unnecessary.‛ In separate May 28, 2015
orders, the district court denied the motion to amend the
complaint to add a new defendant and granted the motion to
issue a subpoena directed to the court clerk, stating that Bryner
was responsible for service of the subpoena. On the same day,
the district court issued a subpoena.
¶5 On June 4, 2015, Bryner moved to reschedule the June 8
trial, stating that he was ‚unable to afford to serve process,‛ and
the district court ‚refused to waive fees for service of process.‛
He also stated that he could not afford to travel to Salt Lake City
for trial on his civil complaint and that he could not personally
appear in the district court because he was subject to arrest on an
outstanding warrant from the Holladay Justice Court. Bryner
failed to appear for trial. Opposing counsel appeared, along with
the court clerk of the Holladay Justice Court. The district court
dismissed the case as a consequence of Bryner’s failure to
appear. Noting opposing counsel’s objection to a continuance,
the district court stated,

Bryner v. Custodian of Records
20150685-CA 3 2016 UT App 40
This court makes a record that the subpoena was
issued regarding the witness he was concerned he
would not be able to subpoena. That witness is
present and Mr. Bryner would have been able to
hear her testimony on this date. The Court makes a
record of Mr. Bryner’s concern for an outstanding
warrant out of Holladay Justice Court. The Court
rules that is not a basis for him not to appear in
Court. The Court denies Mr. Bryner’s motion to
continue this trial and moves forward. Based on
Mr. Bryner’s failure to appear and failure to put on
evidence, with [the court clerk] present, the Court
dismisses this case with prejudice. Additionally the
court renders the pending motions [moot]. The
Court denies Mr. Bryner’s motion for a telephone
conference.
¶6 ‚In reviewing a trial court’s decision to dismiss for failure
to prosecute, we accord the trial court broad discretion and do
not disturb its decision absent an abuse of discretion and a
likelihood that an injustice has occurred.‛ Hartford Leasing Corp.
v. State, 888 P.2d 694, 697 (Utah Ct. App. 1994). ‚In determining
whether the court abused its discretion, we ‘balance the need to
expedite litigation and efficiently utilize judicial resources with
the need to allow parties to have their day in court.’‛ Id. (citing
Meadow Fresh Farms, Inc. v. Utah State Univ., 813 P.2d 1216, 1219
(Utah Ct. App. 1991)). In analyzing whether a trial court has
abused its discretion in dismissing a case for failure to prosecute,
we consider (1) the conduct of both parties, (2) the opportunity
each party has to move the case forward, (3) what each party has
done to move the case forward, (4) the amount of difficulty or
prejudice that may have been caused to the other side, and (5)
whether injustice may result from the dismissal. Cheek v. Clay
Bulloch Constr., Inc., 2011 UT App 418, ¶ 7, 269 P.3d 964. In
performing this review, we consider that ‚the plaintiff, as the
party initiating the lawsuit, has the primary responsibility to
move the case forward‛ and that the defendant has no general

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20150685-CA 4 2016 UT App 40
responsibility to move plaintiff’s case forward. See Hartford
Leasing, 888 P.2d at 698 n.2.
¶7 Because Bryner did not appear at the trial to present
evidence in support of his claims that the Holladay Justice Court
violated the Management Committee’s order, those claims are
not preserved for appeal.1 The only issue before this court is
whether the district court abused its discretion in denying his
belated requests to continue the trial and hold a further
telephone scheduling conference and in dismissing his civil case
for failure to appear at trial. Bryner had ample notice of the trial
date in his civil case. The court denied his motion to join the
court clerk as a defendant. The court granted Bryner’s alternative
motion to issue a subpoena to compel the clerk’s appearance at
trial, clarifying that Bryner was responsible for service. Four
days before the scheduled trial, Bryner moved to continue the
trial and hold a scheduling conference because he claimed he
could not afford to serve the subpoena, could not afford
transportation to court, and was subject to arrest on an
outstanding warrant if he appeared in court. None of these
circumstances excused Bryner from his primary responsibility to
move his civil case forward. Contrary to his argument, rule 4-502
of the Utah Rules of Judicial Administration, which pertained to
discovery disputes, did not require the district court to hold a
further conference in this case.
¶8 Bryner argues that he was misled by the district court and
the opposing party because he was not informed that the
Holladay Justice Court clerk would be available at trial. At his
request, the district court issued a subpoena to compel the
1. Bryner attempts to raise a jurisdictional issue by alleging that
the district court lacked authority to review the Management
Committee’s order. Because Bryner filed the underlying case
seeking to enforce the Management Committee’s order, which
necessarily involved review of its requirements, this assertion
lacks merit.

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attendance of a witness. Although he failed to serve the
subpoena, the witness was present at trial. As the plaintiff in this
civil case, Bryner had the primary responsibility to move the
case forward. It was not the responsibility of the district court or
the opposing party to prosecute Bryner’s case or assure that it
moved forward. Bryner was aware of the trial date. Bryner did
not appear in person in court for any hearing in the civil case
that he initiated, even when he was specifically required by the
district court to do so. By failing to appear, he clearly risked the
possibility that the case would be dismissed. Furthermore, the
issuance of an arrest warrant was the result of Bryner’s own
conduct in another case and was not, as he now claims, a part of
an alleged conspiracy involving court personnel to deny his
access to the court. We conclude the district court did not abuse
its discretion in denying a continuance or the request for a
scheduling conference and in dismissing the case.
¶9 We affirm the district court’s dismissal of the underlying
case with prejudice.