This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).




Walter John Yoch, Jr.,



Gloria Yarusso, Trooper, State Patrol,

Minnesota Department of Public Safety; et al.,


Officers Ramstad, et al.,


Filed June 11, 1996


Willis, Judge

Ramsey County District Court

File No. C29310301

Douglas W. Thomson, Suite W-1260, 332 Minnesota Street, St. Paul, MN 55101 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Jerome L. Getz, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondents Yarusso, et al.)

Timothy E. Marx, St. Paul City Attorney, Theodore D. Leon, Assistant City Attorney, 550 City Hall and Courthouse, St. Paul, MN 55102 (for Respondents Ramstad, et al.)

Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Amundson, Judge.



Appellant challenges the district court's order denying his motion to vacate a judgment of dismissal. We affirm.


Appellant Walter Yoch, Jr., alleged that the Saint Paul Police caused permanent injury to his fingers by using unlawful force when they arrested him for DWI on June 3, 1989. About two years after his arrest, Yoch sued the City of Saint Paul and the State of Minnesota (respondents) for assault and battery, negligence, and violations of 42 U.S.C. ' 1983.

In June 1992, Yoch provided respondents with authorizations to release medical records, but the suit progressed slowly, if at all, until June 1994, when respondents again requested authorizations to release medical records from Yoch because the previous authorizations had expired. Yoch signed new release forms, but later revoked them. When respondents moved to compel Yoch to provide authorizations to release medical records and to provide answers to interrogatories, the court issued an order on Friday, October 21, 1994, requiring Yoch or his attorney (1) to provide answers to interrogatories (Set II) by 4:30 p.m. on October 25, 1994; (2) to deliver copies of his medical records from Minneapolis Veterans Hospital to respondents by 4:30 p.m. on October 25, 1994; (3) to provide answers to supplemental interrogatories and to respond to a supplemental request for the production of documents by November 10, 1994; (4) to provide respondents with executed medical records release authorizations by October 23, 1994; (5) to mail a letter by October 23, 1994, to Minneapolis Veterans Hospital regarding the release of Yoch's medical records there; and (6) to pay respondents $250 each for costs, expenses, and attorney fees incurred in bringing the motion to compel. The order concluded by stating that,

[i]n the event that plaintiff or his attorney fails to comply with this ORDER within the specified time period, defendants may, upon application by their counsel and certification by affidavit to that effect, obtain, by ex parte order, a dismissal of this action with prejudice and on the merits.

When Yoch and his attorney missed most of the court-imposed deadlines, the district court granted respondents' ex parte motion to dismiss. More than six months later, Yoch moved pursuant to Minn. R. Civ. P. 60.02 to vacate the judgment dismissing his action. The court denied his motion, finding that Yoch failed (1) to meet the four-prong Hinz test to permit vacation of the judgment pursuant to Minn. R. Civ. P. 60.02(a) or (2) to demonstrate any "exceptional circumstances" to allow vacation of the judgment pursuant to Minn. R. Civ. P. 60.02(f).


The district court has broad discretion to relieve a party from a final judgment for "mistake, inadvertence, surprise or excusable neglect" or "any other reason justifying relief from the operation of the judgment." Minn. R. Civ. P. 60.02 (a), (f). Rule 60.02, while specifically referring to default judgments, also provides relief from a judgment of dismissal. Sand v. School Serv. Employees Union, Local 284, 402 N.W.2d 183, 186 (Minn. App. 1987), review denied (Minn. Apr. 29, 1987). On appeal from a denial of a motion to vacate a judgment, an appellate court may only determine whether the district court abused its discretion. Spicer v. Carefree Vacations, Inc., 379 N.W.2d 728, 729 (Minn. App. 1986).


Rule 60.02(a) and the Hinz test. A district court should grant relief from a judgment under rule 60.02(a) if a party (1) has a reasonable defense on the merits, (2) has a reasonable excuse for failure or neglect to act, (3) has acted with due diligence after notice of entry of judgment, and (4) shows that no substantial prejudice will result to the other party. Hinz v. Northland Milk & Ice Cream Co., 237 Minn. 28, 30, 53 N.W.2d 454, 455-56 (1952). Generally, courts favor a liberal application of the Hinz test to further the policy of resolving cases on their merits. Taylor v. Steinke, 295 Minn. 244, 246, 203 N.W.2d 859, 860 (1973). Under Hinz, Yoch's appeal fails.

A. Reasonable claim on the merits. A meritorious claim "must ordinarily be demonstrated by more than conclusory allegations in moving papers." Charson v. Temple Israel, 419 N.W.2d 488, 491 (Minn. 1988). Because Yoch offered no evidence of the merits of his claim other than the allegations of his complaint, the district court properly concluded that Yoch failed to satisfy the first prong of the Hinz test.

B. Reasonable excuse for failure or neglect to act. Yoch offered the district court two excuses for failing to comply with the discovery order: (1) unavailability, because he was in California and too ill to travel, and (2) substantial compliance with the court's order, or, alternatively, impossibility of full compliance. On appeal, Yoch does not argue the "unavailability" excuse. Our focus, therefore, is only on whether substantial compliance or impossibility presents a reasonable excuse for failure to comply with the discovery order.

(1) Substantial compliance with the court's order. The district court rejected Yoch's claim that he had substantially complied and specifically found that Yoch "put forth no effort to comply with the court order." It appears that Yoch and his attorney did attempt to provide certain documents, but after expiration of the court-imposed deadlines. The record reflects that Yoch's attorney sent a letter to Veterans Hospital two days later than ordered by the court, faxed unsigned answers to interrogatories to respondents on the day specified for answers in the court's order, and provided a new authorization to release medical records three days later than ordered by the court. Yoch did not provide any of the documents in accordance with the court's order. Therefore, the district court did not err by finding that Yoch failed to comply substantially with the court's order.

(2) Impossibility. Yoch's excuse of impossibility is without merit. It is irrelevant that the court imposed a Sunday deadline for providing medical authorizations and mailing a letter to Veterans Hospital. Yoch could have complied with those requirements of the district court's order on the day the order was issued.

We also find unpersuasive Yoch's argument that compliance with the court's deadline was impossible because a Veterans Hospital medical records clerk stated that Yoch's medical records would not be available before November 2, 1994. The court specifically ordered Yoch to obtain and deliver copies of the medical records to respondents by 4:30 p.m. on October 25, 1994. The record shows that neither party knew that the records were unavailable before November 2 until the day after the court-ordered deadline to produce the records. Yoch did not object to the court's deadlines or request an extension of time to produce the documents. Yoch may not rely on hindsight to construct an excuse of impossibility.

We find that Yoch has not shown a reasonable excuse for his failure or neglect to act in accordance with the court's order, and thereby he failed to satisfy the second prong of the Hinz test.

C. Acted with due diligence after notice of entry of judgment. The rules of civil procedure require a party to bring a Rule 60.02 motion "within a reasonable time." Minn. R. Civ. P. 60.02; see also id. (limiting motions to vacate based on excusable neglect to one year after the court's entry of judgment). Under Hinz, the district court must also consider whether the moving party acted with due diligence after receiving notice of entry of judgment. 237 Minn. at 30, 53 N.W.2d at 455-56. Whether a party has acted with "due diligence" or "within a reasonable time" is a fact-specific inquiry for the district court. Hovelson v. U.S. Swim & Fitness, Inc., 450 N.W.2d 137, 142 (Minn. App. 1990), review denied (Minn. Mar. 16, 1990).

The district court's memorandum notes that motions to vacate are often brought within days or weeks after notice of entry of the judgment. Even so, a party who waits longer than a few days or weeks may still have acted diligently. See, e.g., Kemmerer v. State Farm Ins. Cos., 513 N.W.2d 838, 841 (Minn. App. 1994) (holding that party acted with due diligence by moving to vacate within three months of entry of judgment), review denied (Minn. June 2, 1994).

Yoch brought his motion to vacate the judgment more than six months after receiving notice of entry of judgment. While a six-month delay is not per se unreasonable, we may consider it in light of the entire "catalog of events." See Hovelson, 450 N.W.2d at 142 (upholding denial of motion to vacate judgment of dismissal brought within nine days because of party's repeated failure to respond to legal process).

The record here shows that from June through October 1994, Yoch ignored discovery requests, which forced respondents to seek judicial intervention. In October 1994, he disregarded the court's clear directives, which resulted in dismissal of his claim. For no apparent reason, he waited more than six months to attempt to remedy the consequence of his noncompliance. The district court concluded that Yoch was "in an analogous situation to the movant in Hovelson." Given this sequence of events, and in light of the district court's broad discretion, we do not conclude that the court erred by finding that Yoch failed to act with due diligence and thereby failed to satisfy the third prong of the Hinz test.

D. Showing that no substantial prejudice will result to opponent. The Minnesota Supreme Court has stated that

the burden, by application of the [Hinz] test, remains that of the moving party to establish that no substantial prejudice will result to the other party.

Nelson v. Siebert, 428 N.W.2d 394, 395 (Minn. 1988). In his brief on appeal, Yoch argues that respondents have shown no prejudice and that the district court failed to explain how respondents were prejudiced. Case law clearly places the burden on Yoch to demonstrate that respondents will suffer no prejudice. A conclusory allegation that no prejudice occurred is insufficient to satisfy this burden. Bentonize, Inc. v. Green, 431 N.W.2d 579, 584 (Minn. App. 1988). The district court properly concluded that Yoch failed to satisfy the fourth prong of the Hinz test.

Because Yoch failed to satisfy the Hinz factors, the district court properly denied his motion to vacate the judgment of dismissal pursuant to Minn. R. Civ. P. 60.02(a).


Rule 60.02(f). The court also rejected rule 60.02(f) as a basis to vacate the judgment because Yoch had not demonstrated "exceptional circumstances" to justify relief. Although Yoch claimed at oral argument that his appeal was based on rule 60.02(f), he did not brief the issue on appeal; therefore, we will not consider the issue. See Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (holding that issues not argued in appellate briefs will be deemed waived on appeal).


Scope of review. Whether dismissal of the action was an appropriate sanction for failure to comply with the discovery order is not an issue properly before this court. The propriety of the sanction would have been properly addressed by appeal from the district court's judgment of dismissal. Yoch did not appeal from that judgment. By special term order dated November 21, 1995, this court limited the scope of this appeal to issues involving the district court's August 3, 1995, order denying Yoch's rule 60.02 motion.

Further, Yoch's contention that the district court erred by failing to make findings to support its denial of his motion to vacate the judgment lacks merit. The district court submitted an eight-page memorandum that amply supported its denial of Yoch's motion.