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COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 12, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0874-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
TRI CITY NATIONAL
BANK,
Plaintiff-Respondent,
v.
SALVATORE J.
PALMISANO,
Defendant-Appellant,
THOMAS N. ALLEGRETTI
and
MONEY COMPANY OF
WISCONSIN, LTD.,
d/b/a MONEY MORTGAGE
COMPANY,
Defendants.
APPEAL from an order of
the circuit court for Milwaukee County:
WILLIAM J. HAESE, Judge. Reversed
and cause remanded with directions.
Before Fine, Schudson
and Curley, JJ.
PER
CURIAM. Salvatore J. Palmisano appeals from an order denying
his motion for relief from judgment under §§ 806.07(1)(c) and (h), Stats.
The trial court denied the motion, concluding that it lacked
jurisdiction to consider the matter because an appeal was already pending in
the case. Because the circuit court's
order conflicts with § 808.075, Stats.,
a statute codifying the circuit court's jurisdiction to hear requests for
relief under § 806.07 during the pendency of an appeal, we reverse the circuit
court's order.
This controversy began
when Palmisano co-signed a promissory note with the Gritz Brothers Partnership,
the primary maker on the note, in favor of Tri City National Bank (Tri City) in
the amount of $702,322.10. Tri City
sued Palmisano, claiming that the Gritz Brothers Partnership had defaulted on
the note. Tri City moved for summary judgment.
The trial court granted the motion and entered judgment in favor of Tri
City. Palmisano filed a motion for
relief from judgment. The trial court
denied the motion and Palmisano appealed.[1] Palmisano then filed a second motion for
relief from judgment, alleging that he had discovered evidence that the
judgment was procured by Tri City's fraud.
Following a hearing on
the motion, the trial court announced that it lacked jurisdiction to consider
the motion because of the pending appeal.
The court went on to express its position that, if it had jurisdiction
to consider the motion, it would deny the motion for the reasons expressed by
the predecessor judge's denial of the first motion for relief.[2] Despite the trial court's expansive oral
discussion of the merits of the motion, the written order denying Palmisano's
motion was limited to the trial court's determination that it lacked
jurisdiction over the motion.
Palmisano's main
contention on appeal is that the trial court's order denying his motion under §
806.07, Stats., was erroneous in
light of § 808.075, Stats. A motion for relief from a judgment is
committed to the wide discretion of the trial court. Price v. Hart, 166 Wis.2d 182, 195, 480 N.W.2d 249,
254 (Ct. App. 1991). "If a judge
bases the exercise of his discretion upon an error of law, his conduct is beyond
the limits of discretion." State
v. Hutnik, 39 Wis.2d 754, 763, 159 N.W.2d 733, 737 (1968).
Section 808.075(1), Stats., provides that "[i]n any
case, whether or not an appeal is pending, the circuit court may act under ...
s[]. 806.07 ...." This language
is clear and unambiguous. The statute
specifically identifies matters brought under § 806.07, Stats., as amenable to disposition before the circuit court
irrespective of the pendency of an appeal.
We conclude, therefore, that the circuit court made an error of law when
it concluded that it lacked the jurisdiction necessary to adjudicate
Palmisano's motion for relief from judgment because an appeal was pending in
the case. It follows, therefore, that
the trial court's order must be reversed and the matter remanded for the trial
court's consideration of the motion.
By the Court.—Order
reversed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.