Peter T. Tysdal, 3015 East Medicine Lake Blvd., Plymouth, MN 55411 (pro se appellant)

Alan J. Albrecht, 7066 Brooklyn Blvd., Brooklyn Center, MN 55429 (for respondent)

Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

This matter, which originated in conciliation court, involves appellant Peter T. Tysdal's claim that he incurred damages as a result of respondent's negligent repair of his automobile. Appellant contends the district court erred by ruling in favor of respondent, arguing: (1) the court's findings were not supported by the evidence; and (2) the court erred by denying him a jury trial. We affirm.

This court will not set aside a trial court's findings of fact unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. Minn. R. Civ. P. 52.01; Runia v. Marguth Agency, Inc., 437 N.W.2d 45, 48 (Minn. 1989). Further, we will only reverse a trial court's findings of fact if, upon review of the entire evidence, we have a "definite and firm conviction" that a mistake has been made. Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987).

Appellant also challenges the district court's determinations that (1) respondent did the work requested by appellant, and (2) appellant failed to carry his burden of proving that the poor condition of the engine when he subsequently brought his car to another garage was the result of respondent's actions. However, again the court's findings are supported by respondent's testimony that (1) he completed the requested repairs and the car started and ran when he was done, and (2) he warned appellant he would experience overheating and drivability problems due to cracked heads. Moreover, appellant's expert witness testified that the turbocharger failed because a nonturbo-style head was installed, but: (1) the receipt produced by appellant indicated the head he bought and had respondent install was a turbo-style head; and (2) respondent testified that he installed a turbo-style head. Further, it is undisputed that four months passed between the time respondent last worked on the car and when appellant brought the car to the second garage.

We conclude the evidence supports the district court's finding that respondent did the work requested by appellant, and appellant failed to carry his burden of proving the condition of the car was the result of respondent's actions. We therefore affirm the district court's dismissal of appellant's claim.

pay to the court administrator the amount prescribed by law for requesting a jury trial in a civil action in district court. A party who is unable to pay the fees may apply for permission to proceed without payment of fees pursuant to the procedure set forth in Minn. Stat. § 563.01 [governing proceedings in forma pauperis].

Minn. R. Gen. Pract. 521(b)(4).

Appellant contends he was wrongfully deprived of a jury trial. We disagree. In his demand for removal from conciliation court, appellant indicated that although he wanted a jury trial, he did not want to pay the required fee. He did not pay the fee or seek a waiver of the fee by applying to proceed in forma pauperis, as required by the rule. Further, appellant has never claimed he is unable to pay the fee; he simply contends he should not have to pay it. Although the rule regarding removal from conciliation court to the district court provides that inability to pay the fee for a jury trial will not constitute a waiver of one's right to a jury trial, the rule does not provide an exception for a party who chooses not to pay the fee. We conclude the district court correctly determined that appellant's failure to pay the jury fee is not excused by the rules and constitutes a waiver of a jury trial.

Further, we reject appellant's contention that pursuant to Minn. R. Civ. P. 38.02 a failure to pay a jury fee for any reason does not constitute a waiver. Accepting appellant's argument would, in effect, make the fee for a jury trial optional. We conclude that under both rule 38.02 and rule 521(b)(1), appellant waived his right to a jury trial by refusing to pay the jury fee.

Appellant also argues the court was required to tell him he could pay the fee during the court trial. We disagree. Once a case is scheduled to be tried to the court on a date certain, the parties have consented to a court trial and waived their right to a jury trial, and a party cannot on the day of trial demand a jury trial. St. Paul Distilling Co. v. Pratt, 45 Minn. 215, 219, 47 N.W.789, 789 (1891). Here, because appellant neither paid the fee nor applied for a waiver of the fee prior to the day of trial, the district court had no duty to allow appellant to pay his fee or to postpone the hearing.

Appellant moves for sanctions and "attorney fees" incurred on appeal, citing Minn. Stat. § 549.211, subd. 3 (1998). Appellant served the motion on respondent's counsel and filed it with this court simultaneously, in violation of the statute. See Minn. Stat. § 549.211, subd. 4 (1998) (motion is not to be filed with the court unless the other party fails to withdraw pleadings to which the objection is made within 21 days after service of motion). Appellant did not incur attorney fees on appeal, did not prevail in the district court or on appeal, and did not establish that he is entitled to sanctions under the statute. His motion is denied.

Respondent moves for attorney "fees incurred on appeal pursuant to Minn. Stat. § 518.14 (1993) [sic]." The cited statute applies to marital dissolution proceedings and is inapplicable to this appeal. The motion is supported by an affidavit of counsel, which is not notarized. The affidavit asserts that respondent is unable to pay attorney fees incurred in defense of this appeal, but it does not establish the existence of any basis for an award of fees in this court. The motion for fees is denied.

Affirmed, motions denied.