This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Rachel Gerr and Darrin Gerr,
Edina Realty, Inc.,


Aychoeun Tea,



Filed January 15, 2002


Stoneburner, Judge


Hennepin County District Court

File No. CT9911743



Douglass E. Turner, Law Office of Douglass E. Turner, PSC, Suite 509, 800 Washington Avenue North, Minneapolis, MN 55401 (for respondents Gerr)


Charles E. Lundberg, Jennifer Hill Vold, Bassford, Lockhart, Truesdell & Briggs, PA, 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent Edina Realty)


Aychoeun Tea, 4604 Bloomington Avenue South, Apartment 3, Minneapolis, MN 55407 (pro se appellant)


            Considered and decided by Halbrooks, Presiding Judge, Shumaker, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N



            Appellant Aychoeun Tea alleges that the district court erred by determining that Tea breached a purchase agreement with respondents Rachel and Darrin Gerr and that Edina Realty was entitled to judgment against Tea for the amount of Tea’s earnest- money check that was returned for insufficient funds.  Tea also alleges that she was improperly denied a jury trial.  Because Tea waived her right to a jury trial and because the district court did not err in its determinations, we affirm.



            Tea, who owns two rental properties and a dry-cleaning business, noticed a “for sale” sign on boarding-house property in Minneapolis and contacted the realtor listed on the sign, Bill Stromgren of Edina Realty.  On April 16, 1999, Stromgren, dually representing the Gerrs, who were selling the real estate, and Tea, drew up a purchase agreement with $1,000 earnest money and a closing date of July 28, 1999.  The Gerrs rejected this offer.

            A few months later Tea noticed that the building was still for sale and contacted Stromgren again.  On July 3, Tea signed another purchase agreement with $5,000 earnest money and a closing date of July 28, 1999.  After she signed the agreement, Tea asked Stromgren to change the closing date in the new agreement to give her the same amount of time between the offer and the closing date as was contained in the first offer.  But, believing that Tea could obtain the required financing by July 28, and reassuring Tea that he could get an extension on the closing date from the Gerrs if necessary, Stromgren did not change the date.  Tea knew that the offer was going to the Gerrs with the closing date of July 28, 1999, but based on Stromgren’s assurances, believed she could have an extension.  Tea gave Stromgren a check issued to Edina Realty for the earnest money and asked him to contact her before he deposited the check.

            On July 5, 1999, Stromgren told Tea that the Gerrs had rejected her offer and suggested that she offer more money.  Tea declined and anticipated that Stromgren would return her check.  In mid-July 1999, she learned that her check had been deposited and dishonored.  She called Stromgren who notified her that the check was deposited, without notice to her, by mistake.  Stromgren said the Gerrs had now accepted her offer and she should secure the financing and he would get an extension on the closing date.  Stromgren told Tea he would pay the dishonored-check fees and redeposit the check after Tea transferred funds to the account, but for reasons not explained in the record, the check was not redeposited by Stromgren or replaced by Tea.

            The Gerrs refused to extend the closing date, but by letter dated July 16, 1999 they offered to allow Tea to cancel the purchase agreement and retain the earnest money.  Tea declined to cancel the purchase agreement. 

Tea requested an inspection of the building’s heating system prior to closing.  The boiler was inspected on July 27, 1999.  Tea was concerned that the boiler inspection was not adequate to cover the “heating system” but testified that she would have purchased the building anyway had she been able to obtain financing by July 28, 1999.  Because Tea did not have financing, the closing did not occur.  Tea would not sign a cancellation of purchase agreement so the Gerrs brought an action to cancel the purchase agreement and for an award of the earnest money, costs, fees, and expenses.  The Gerrs were granted a default judgment, ordering Edina Realty (not a party to that lawsuit) to pay Tea’s $5,000 earnest money to the Gerrs and canceling the July 3, 1999 purchase agreement.

            A copy of the judgment was sent to Edina Realty.  Edina Realty substituted its own check for $5,000 for Tea’s dishonored check to satisfy the judgment.  Edina Realty then sued Tea in conciliation court for the amount of her bad check.  After the conciliation court ruled in favor of Edina Realty, Tea removed the matter to district court for a new trial.  On the removal form she requested a jury trial. 

Notice was sent to Edina Realty and Tea that the conciliation court appeal was set for a court trial on September 12, 2000.  Tea did not renew her request for a jury trial after receiving this notice.  She appeared for the court trial on September 12 and did not request a jury trial at that time.  Based on information presented at that trial, the court concluded that the default judgment may have been improperly granted to the Gerrs in their action.  The trial judge contacted the judge who had entered the default judgment in the Gerrs’ action and the default judgment obtained by the Gerrs was vacated.  The Gerrs’ action and Edina Realty’s action were consolidated and set for a court trial in February 2001.  Tea did not object to the consolidated cases having been scheduled for a court trial.  The matter was continued twice.  Each notice of a new trial date specified that the matter was set for a court trial.  Tea did not object.  The consolidated cases came to trial on April 24, 2001.  Tea appeared pro se, assisted by a friend, Sheik Azizudin, who was allowed to participate despite not being an attorney or a party.  An interpreter was also present because Tea’s primary language is not English. 

Neither Tea nor Azizudin renewed Tea’s request for a jury trial or objected to the matter being submitted to the court without a jury.  The court concluded that the Gerrs properly cancelled the purchase agreement and were entitled to the earnest money and that Edina Realty was entitled to $5,000 from Tea for her dishonored check.  Tea appeals.



1.                  Jury trial issue

The record documents Tea’s request for a jury trial on the form for removal of Edina Realty’s conciliation court action to district court.  There is nothing in the record indicating that Tea ever requested a jury trial in the action brought by the Gerrs.  Edina Realty argues that Tea is precluded from seeking review of the jury trial issue raised for the first time on appeal.  Sauter v. Wasemiller, 389 N.W.2d 200, 202 (Minn. 1986) (holding that a post-trial motion for a new trial raising errors allegedly occurring at trial is a prerequisite to appellate review of those errors).  The supreme court has recognized an exception to the Sauter rule for a party who has raised the issue of a jury trial to the trial court.  Tyroll v. Private Label Chemicals, Inc., 505 N.W.2d 54, 57 (Minn. 1993).  Because Tea specified a jury trial in her notice of removal, we conclude that Tea is not precluded from raising the issue on appeal.  But Tea, with advance notice that the trials were scheduled as court trials, participated in two court trials without raising the issue of her request for a jury trial.  She voluntarily submitted the case to the court without a jury and the record reflects that the district court in both trials relaxed procedural rules to ensure a complete understanding of Tea’s claims.  We conclude that Tea, by her conduct, waived her right to a jury trial.  Karlstad State Bank v. Fritsche, 374 N.W.2d 177, 182-83 (Minn. App. 1985) (holding that despite written demand for jury trial, Fritsches waived their right to jury trial by submitting to court trial without objection and raising the issue for the first time in final argument). 

2.                  Breach of purchase agreement

On appeal from a judgment, when no motion for a new trial was made, the “only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.”  Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976) (citations omitted).  The evidence supports the district court’s conclusion that the Gerrs properly cancelled the purchase agreement because Tea failed to obtain financing by the closing date.  Although the district court recognized that Tea was ill-served by the dual-representative capacity of Stromgren, Tea did not assert any claims against Stromgren or the Gerrs.  Tea acknowledges that she knew the offer was submitted with a closing date of July 28, 1999 and that prior to the closing date she knew, despite Stromgren’s earlier promises, that the Gerrs would not agree to an extension.  Nonetheless, Tea chose not to cancel the purchase agreement but to go forward with the July 28, 1999 closing date. 

The record supports the district court’s finding that the inspection of the heating system was completed before the closing date and that Tea was willing to go through with the purchase based on the inspection performed had she been able to obtain financing. 

To the extent that Tea raised the issue that the Gerrs (or Stromgren acting on their behalf) first breached the purchase agreement by failing to obtain the appropriate inspection, the evidence supports the district court’s rejection of this claim.  Because Tea could not meet the closing date, she breached the contract and the Gerrs were entitled to cancel the purchase agreement and retain the earnest money.  Edina Realty substituted its own check for Tea’s dishonored check, and the district court correctly determined that Edina Realty is entitled to judgment against Tea for the amount of the dishonored check.