Tire King v. Flynn

----ooOoo----

Tire King, Inc.,
Plaintiff and Appellee,

v.

Robert Flynn III,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20010172-CA

F I L E D
May 9, 2002 2002 UT App 155 -----

Seventh District, Price Department
The Honorable Bryce K. Bryner

Attorneys:
Robert Flynn III, Price, Appellant Pro Se
Keith H. Chiara, Price, for Appellee -----

Before Judges Bench, Greenwood, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

The decision whether to grant a continuance is left to the discretion of the trial court, and its "decision will not be overturned unless that discretion has been clearly abused." Brown v. Glover, 2000 UT 89,¶43, 16 P.3d 540. See id. at ¶¶42-43. "If the motion [for a continuance] is made upon the ground of the absence of evidence, such motion . . . shall show that due diligence has been used to procure it." Utah R. Civ. P. 40(b). See State v. Williams, 712 P.2d 220, 222 (Utah 1985) (even in criminal cases, "[i]t is . . . well-settled that when a defendant moves for a continuance in order to procure the testimony of an absent witness . . . he must show . . . that due diligence ha[s] been exercised before making the request").

In this case, Flynn based his motion for a continuance on the absence of Paul Pugliese. Pugliese's absence, however, was due to Flynn's own failure to serve Pugliese with a proper subpoena despite the fact that Flynn had known for nearly two and a half months the date, time, and place set for trial. Given Flynn's failure to properly subpoena Pugliese, we cannot say that the trial court abused its discretion or denied Flynn due process by failing to grant a continuance.(1)

Flynn further argues that, as a matter of Due Process, the trial court itself should have corrected the mistakes in the defective subpoena. Alternatively, he argues that opposing counsel should have acted to help Flynn correct the mistakes. These arguments are unavailing. "As a general rule, a party who represents himself will be held to the same standard of knowledge and practice as any qualified member of the bar." Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983). And "[d]uring the course of a lawyer's representation of a client, the lawyer shall not give advice to an unrepresented person other than the advice to obtain counsel." Utah R. Prof. Conduct 4.3 (a).

Finally, much of Flynn's brief is devoted to rearguing the evidence in his favor. However, "[w]e do not sit to retry the facts," Crookston v. Fire Ins. Exchange, 817 P.2d 789, 800 (Utah 1991), but rather "give great deference to the trial court's findings, especially [when] they are based on an evaluation of conflicting live testimony." Terry v. Price Mun. Corp., 784 P.2d 146, 147 (Utah 1989) (per curiam). We cannot say that the trial court's findings were clearly erroneous, see id., especially because Flynn has not provided a trial transcript. SeeGorostieta v. Parkinson, 2000 UT 99,¶16, 17 P.3d 1110.

Affirmed.
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 

______________________________
Russell W. Bench, Judge
 
 

______________________________
Pamela T. Greenwood, Judge

1. It follows that Flynn was not entitled to a new trial based on the trial court's earlier refusal to grant a continuance. SeeGoddard v. Hickman, 685 P.2d 530, 532 (Utah 1984) ("A trial court has broad latitude in granting or denying a motion for a new trial, and will not be overturned on appeal absent a clear abuse of discretion.").