Preview:

IN THE UTAH COURT OF APPEALS
----ooOoo----

Roger Bryner,  )  MEMORANDUM DECISION  
)  (Not For Official Publication)  
Plaintiff and Appellant,  ) )  Case No. 20070183-CA  
v.  )  
)  F I L E D  
Emily Smoak; and Cohne,  )  (March 13, 2008)  
Rappaport, and Segal,  )  
)  2008 UT App 81  
Defendants and Appellees.  )  

Third District, Salt Lake Department, 050922650
The Honorable Kate A. Toomey

Attorneys: Roger Bryner, Midvale, Appellant Pro Se
Jeffrey L. Silvestrini, Salt Lake City, for Appellee

Before Judges Thorne, Bench, and Billings.

PER CURIAM:

Roger Bryner appeals the district court's denial of his
motion to vacate a garnishment directed at Fidelity Investments.
Bryner argues that the district court improperly denied his
motion because federal law preempts state law, and federal law
does not allow the garnishment of certain retirement accounts.
However, there is no need to resolve the issues raised by Bryner
because they are moot.

"An issue on appeal is considered moot when the requested
judicial relief cannot affect the rights of the litigants. When
an issue is moot, judicial policy dictates against our rendering
an advisory opinion." State v. Sims, 881 P.2d 840, 841 (Utah
1998) (internal quotation marks and citations omitted). On
December 1, 2006, Appellees (collectively referred to as Cohne
Rappaport) applied for a writ of garnishment directed to Fidelity
Investments. Shortly thereafter, Fidelity Investments notified
Cohne Rappaport that the accounts specified in the writ were
retirement accounts immune from garnishment. Bryner then filed a
motion to vacate the writ of garnishment. On December 19, 2006,
in response to the notice Cohne Rappaport received from Fidelity
Investments, Cohne Rappaport filed a release of the previous
garnishment. No funds were ever removed from Bryner's Fidelity

Investments retirement accounts. Because Cohne Rappaport
released the garnishment in question, the relief requested by
Bryner can no longer affect his rights or the rights of Cohne
Rappaport. Accordingly, the issues raised by Bryner are moot,
and "judicial policy dictates against our rendering an advisory
opinion." Id.

This case is dismissed as moot.

William A. Thorne Jr.,
Associate Presiding Judge

Russell W. Bench, Judge

Judith M. Billings, Judge

20070183-CA 2

Download bryner031308.pdf

Utah Law