This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1762

A03-2011

 

AmyJo Williams,

Appellant,

 

vs.

 

Lena Schewe, et al.,

Respondents,

 

And

 

Lena Schewe, et al.,

Respondents,

 

AmyJo Williams,

Appellant.

 

 

Filed August 3, 2004

Affirmed

Toussaint, Chief Judge

 

Anoka County District Court

File Nos. C8-03-11052 & C1-03-7392

 

AmyJo Williams, 2755 90th Lane NE, Blaine, MN 55449 (pro se appellant)

 

John Garrett Westrick, Westrick & McDowall-Nix, PLLP, 450 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for respondents)

 

            Considered and decided by Anderson, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

             In these consolidated real estate appeals, appellant-buyer (1) challenges the district court’s finding of the price of the property in question; (2) argues that the district court erroneously dissolved a temporary restraining order based on an affidavit unavailable to her; (3) argues that respondent-sellers precluded a closing by not providing information to the title company; and (4) alleges that the eviction proceeding was improper because of the pending appeal of the parties’ underlying contract-for-deed dispute.  Because appellant’s arguments are unsupported, without merit, or improperly before this court, we affirm.

FACTS

            In November 2002, appellant AmyJo Williams and respondents Lena and Todd Schewe entered into a purchase agreement for a home, with a closing date of November 25.  The parties amended the agreement later that month, agreeing that Williams would take possession of the property November 21, and pay monthly rent until a closing date of December 20, 2002.  The record reflects that the parties did not close on the second date, and Williams simply continued to pay monthly rent without dispute.  This agreement continued until July 2003, when Williams filed the first of these consolidated actions. 

In her July 23, 2003 summons and complaint, Williams alleged that the Schewes committed negligent misrepresentation, fraudulent misrepresentation, breach of contract, and failed to contract in good faith, when the parties entered into the purchase agreement.  Williams also sought, and was granted, a temporary restraining order enjoining the Schewes from terminating the purchase agreement or evicting Williams from the disputed property.  As part of this TRO, the district court explicitly required that Williams continue making monthly rent payments. 

At the temporary injunction hearing on August 11, 2003, the district court noted the unorthodox arrangement of the parties (due to the purchase agreement not being enforced for months), and encouraged a swift resolution to the dispute.  The court suggested that Williams buy the property “as is” for the agreed-on price, as stipulated in the purchase agreement, provided that she could quickly obtain a mortgage commitment.  Williams agreed, and promised to obtain a mortgage commitment within two weeks of the hearing.  She also conditioned closing, set for September 15, 2003, upon the Schewes providing title documentation.  The court deferred its ruling on the temporary injunction until the agreed-on closing date of September 15, 2003. 

September passed without Williams securing a mortgage commitment, and on October 13, 2003, the district court dissolved the temporary restraining order (TRO).  It made this determination because (1) the closing did not occur due to Williams’s failure to obtain a mortgage commitment, (2) Williams had violated a condition of the TRO by failing to pay her monthly rent since mid-July; and (3) Williams would not suffer irreparable harm if the order was lifted.  Williams filed an appeal with this court on October 28.[1]

On November 7, 2003, with the TRO dissolved, the Schewes filed an eviction action against Williams.  After a trial on December 19, 2003, the district court[2] determined that Williams was in default under the terms of the purchase agreement, that the Schewes had cancelled the purchase agreement, that Williams had not redeemed the purchase agreement during the statutory redemption period, and that Williams failed to vacate the property following expiration of the redemption period.  The court authorized the issuance of a writ of recovery, and denied Williams’s motion to stay the issuance of the writ absent a $6,550 supersedeas bond.  She now appeals.

D E C I S I O N

I.

Valuation determination

            Williams first argues that the district court erroneously determined the value of the disputed property without first having a jury trial to establish its value.  She argues that by failing to consider evidence that she was being defrauded, the court essentially forced her into an unconscionable contract.  A review of the hearing transcript, however, indicates that no such judicial coercion took place.  The record shows that the district court merely suggested that the parties swiftly end their dispute by adhering to the terms of the original
purchase agreement.  Williams, after consulting with her attorney, stated that the terms were “acceptable” and agreed to close on September 15, 2003. 

Because the record clearly shows that Williams failed to dispute the value of the property in the district court, we shall not address the issue here.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

II.

 

Temporary Restraining Order Dissolution

 

Williams next argues that the district court erred in dissolving the TRO, arguing that the court based its determination on documentation that was never provided to her.  She cites “Minnesota Rules of Civil Procedure Rule 5” to argue that she was entitled to respond to the letter, affidavit, and attached photographs provided to the court by the Schewes.  The record reflects, however, that Williams was represented by counsel until November 25, 2003.  Williams’s counsel was provided a copy of the letter and attached documentation on October 7, 2003, more than a month before he withdrew as Williams’s attorney of record. 

When service is “required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney . . .” Minn. R. Civ. P. 5.02 (emphasis added).  Here, the record reflects that Williams’s counsel was provided with all of the now-disputed documentation.  Because the Schewes clearly followed the rules of civil procedure, Williams’s argument must fail.  

“A decision on whether to grant a temporary injunction is left to the discretion of the trial court and will not be overturned on review absent a clear abuse of that discretion.”  Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 209 (Minn. 1993).  Here, the record clearly supports the district court’s determination that the injunction was no longer necessary or proper.  First, the parties failed to close on the agreed-on date.  Second, Williams had not continued to pay rent.  Third, Williams failed to show that she would suffer irreparable harm upon dissolution of the restraining order.  Considering the facts in a light favorable to the prevailing party, the district court did not abuse its discretion.  See First State Ins. Co., v. Minn. Mining & Mfg. Co., 535 N.W.2d 684, 687, (Minn. App. 1995), review denied (Minn. Oct. 18, 1995).

III.

 

Title information

 

Williams next challenges the district court’s refusal to examine alleged evidence that the Schewes failed to cooperate with the district court’s instruction to provide title information before closing.  There is nothing in the record, however, indicating that Williams made such a demand to the district court.  Because she failed to raise this issue in the district court, it shall not be addressed here.  See Thiele, 425 N.W.2d at 582.

But even if this court were to consider this issue, Williams’s claim is unmeritorious.  The record reflects that Williams was to obtain a mortgage commitment within two weeks after issuance of the temporary injunction—in other words, on or before August 25.  The Shewes were required to present title information before closing on September 15th.  Once Williams failed to obtain the mortgage commitment, she was in breach of her contractual obligations, and the Shewes were no longer required to perform.  See Bell v. Olson, 424 N.W.2d 829, 832 (Minn. App. 1988) (“Without first tendering performance, a party cannot justify nonperformance by the other party's failure to perform.”).

IV.

Writ of recovery

Finally, Williams challenges the propriety of the district court’s issuance of a writ of recovery while her appeal of the TRO dissolution was pending in this court.  She claims that the district court stated that the two cases were unrelated, “and that testimony would be taken as there was no bond required for the first appeal.”  She provides no evidence of this interaction, however, and fails to provide a transcript of the eviction trial.

“When an appellant fails to provide a transcript, this court’s review is limited to whether the trial court’s conclusions of law are supported by the findings.”  Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995).  The appellant carries the burden of providing an adequate record.  Noltimier v. Noltimier, 280 Minn. 28, 29, 176 N.W.2d 530, 531 (1968).  This burden remains even when the appellant appears pro se.  Id.

Here, we are provided solely with the district court’s findings of facts and order, which state that Williams entered into a purchase agreement, that there was a default under the purchase agreement, that the Schewes cancelled the purchase agreement, that Williams did not redeem the purchase agreement during the statutory redemption period, and that Williams failed to vacate the property following the expiration of the redemption period.  Without the trial transcript, we cannot ascertain whether the district court even considered Williams’s request to stay the proceedings, or even if such a request was properly made to the district court.  The legal conclusion that the Schewes were entitled to recovery, however, is clearly supported by the limited findings. 

Affirmed.



[1] The record reflects that Williams filed the appeal pro se on October 28, 2003.  Her attorney of record, however, did not file his notice of withdrawal until November 25, 2003.

[2] The record reflects that the district court presiding over Williams’s initial claim was a different court from that presiding over the eviction proceeding.