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COURT OF APPEALS DECISION DATED AND RELEASED November 30, 1995 |
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. 94-2980
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
LOUIE AIELLO,
Plaintiff-Appellant,
v.
GARY McCAUGHTRY, LYNN
OESTREICH,
G. D. GRAMS,
and ANNA SECCHI,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Dane County:
MORIA KRUEGER, Judge. Affirmed.
Before Dykman, Sundby,
and Vergeront, JJ.
PER
CURIAM. Louie Aiello appeals from an order denying his motion
for relief from judgment under § 806.07, Stats. Because Aiello's motion for relief does not
show that he is entitled to relief under § 806.07, but merely repeats arguments
already addressed by the court, we conclude that the trial court's reliance on
the reasons in its decision on the judgment was not an erroneous exercise of
discretion. Therefore, we affirm.
Aiello sued prison
officials under 42 U.S.C. § 1983.[1] The trial court determined that Aiello's
action was frivolous and explained why an award of attorney's fees was
appropriate. Before the trial court
determined the amount, it directed Aiello "to submit an updated affidavit concerning
his financial information including any money in his inmate account." In response, Aiello averred that he was
"completely indigent in March of 1993." In respondents' fee request, counsel noted that Aiello
"currently has no funds in his inmate account which may be used to satisfy
a judgment, [however,] he has plenty of time to accumulate money through prison
employment to pay any judgment for costs." The trial court then imposed attorney's fees.[2] See 42 U.S.C. § 1988.
After abandoning an
appeal from the judgment, Aiello instead sought relief under § 806.07, Stats., claiming that the judgment
should be vacated because he was unable to pay the fees.[3] He framed this single substantive issue as
three separate grounds for relief under § 806.07(1)(a), (g) and (h). The trial court denied his motion
"[f]or the reasons stated in the Memorandum Decision of August 11,
1993." Aiello contends that this
constitutes an erroneous exercise of discretion. We disagree.
Aiello had previously
presented evidence on his indigency, which the court had already
considered. In his motion for relief,
he merely recast his previous arguments and further substantiated his
indigency, rather than showing that a criterion for relief under
§ 806.07(1), Stats., was
met. Under these circumstances, the
court's reliance on the reasons in its decision on the judgment sought to be
vacated constitutes a proper exercise of discretion.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.