Biller Hotel, Ltd. v. Society Insurance, No. 2006AP2448 (Wis. App. 1/23/2008)
| Decision Date | 23 January 2008 |
| Docket Number | No. 2006AP2448.,2006AP2448. |
| Parties | Biller Hotel, Ltd. and Sally Borchardt, Defendants-Respondents, v. Society Insurance, Defendant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Milwaukee County: JEFFREY A. KREMERS, Judge. Affirmed and cause remanded with directions.
Before Wedemeyer, Fine and Kessler, JJ.
The plaintiff-appellant, Fidelis Omegbu, appeals pro se from a judgment entered in favor of the defendants, Biller Hotel, Ltd. ("the Hotel"), Sally Borchardt, and Society Insurance on the jury verdict dismissing the plaintiff's negligence claim, and awarding the defendants $1,707.51 for taxable costs and disbursements. Omegbu claims that: (1) the court improperly used the transcript of his deposition testimony at trial; (2) his prior convictions and solicitation of prostitutes in this incident were inadmissible; (3) the form of the special verdict questions and denial of certain jury instructions were the result of an erroneous exercise of discretion; (4) this court should overturn the trial judge's denial of a motion for judgment notwithstanding the verdict; and (5) the trial judge refused to permit Omegbu to retain counsel. Because the trial court did not erroneously exercise its discretion in the first four claims; because we decline to review the fifth issue; and because we find all of Omegbu's claims to be frivolous, we affirm the judgment and remand with directions.
¶ 2 Omegbu alleges that two females stole property belonging to him and returned, with others, on subsequent occasions to assault him and take more of his property. However, the facts of the events leading up to the initial cause of action in this case are not at issue on this appeal. Rather, Omegbu bases his appeal in the procedural history of this case. The procedural history is protracted and confusing because the actions of Omegbu were often made without any foundation in law or fact.1 This appeal is no different—the claims Omegbu raises are absolutely frivolous.
¶ 3 On the morning of September 3, 2004, Omegbu claims he entered TCF Bank and withdrew six hundred dollars. When he exited the bank and returned to his car, he alleges that there were two strange women, in their twenties, either on or near his car. Omegbu testified that when the women asked for a ride to approximately 26th Street and Oklahoma Avenue, he agreed to drive them. During the drive, the women wanted to stop and use a bathroom, and when Omegbu told them he lived in a hotel, they asked if they could stop and use the bathroom in his room at the hotel. Again, Omegbu agreed and drove them to the hotel.
¶ 4 When they arrived at the hotel, Omegbu testified that he stopped at the front desk to register the women, but the desk attendant was not present. Although Omegbu testified that they waited five or ten minutes for the desk attendant to return, a videotape taken from a camera in the lobby of the hotel shows Omegbu waiting in the lobby only as long as necessary for the elevator to arrive—a matter of approximately ten seconds. Omegbu then led the women to his room, even though they had not been registered. A written policy of the hotel provides: At the time of first renting his room at the hotel, Omegbu signed an agreement by which he agreed to follow this and other rules. Omegbu also testified that he knew he was required to get the hotel's permission before bringing the women to his room.
¶ 5 Upon entering the room, Omegbu testified that he placed his coat on the bed, with his wallet containing $ 100 in the pocket, and his keys on the table. He then put the remaining $500 in a coat in a closet in the bathroom. After one of the women used the bathroom, Omegbu also decided to use the bathroom, but left the bathroom door open. While he was on the toilet, the women left with his wallet, allegedly containing $100 and some credit cards, and keys. However, Omegbu testified that "miraculously" his TYME card, medical card and immigration card all fell from his wallet and, thus, were not stolen. Omegbu chased after the women unsuccessfully. Omegbu did not report the theft to the police.
¶ 6 Omegbu claims that the same two women with two men returned the next day, September 4, 2004, at approximately 2:00 a.m. It appears that they used a key to get into the hotel and then into Omegbu's room. After the four alleged assailants entered his room, Omegbu testified that they slapped him more than ten times, tied his hands behind his back, put him in the bathtub at gun point and covered his head with a pillowcase. The assailants allegedly took the $500 that Omegbu had hidden in the closet and forced him to give them his TYME card and pin number, which Omegbu had fortunately cancelled after the initial theft on September 3rd.
¶ 7 On September 4th, Omegbu finally filed police reports for the theft occurring on September 3rd, and the incident on the early morning of September 4th. On this date, the police also took Omegbu into custody because there was an outstanding warrant for his arrest related to his felony conviction for election fraud. After serving a few days in the House of Correction, Omegbu returned to the hotel and had the hotel change the lock to his room. Omegbu testified that some of the assailants tried to return to his room on either September 14th or 15th, but were unable to enter because the locks were changed. Omegbu also alleged that the thieves broke into his car on September 15th and took a number of personal items.
¶ 8 Omegbu asserted four causes of action against the Hotel in his original complaint filed on March 4, 2005, which he subsequently amended on June 6, 2005, to include two additional claims against Society Insurance. Omegbu's six claims appear to be: (1) assault and battery; (2) breach of "duty of good faith and fair dealing" by failing to protect the plaintiff-appellant; (3) negligence resulting in damage to or loss of personal property; (4) negligence resulting in bodily injury; (5) a direct action claim against Society Insurance as the insurer of the Hotel; and (6) bad faith on the part of Society Insurance. Both Omegbu and the defendants-respondents filed motions for summary judgment. Accompanying the defendants-respondents' motion for summary judgment was an affidavit of defense counsel, authenticating portions of Omegbu's deposition transcript. In December 2005, the trial court dismissed all of Omegbu's claims, except his negligence claims allegedly resulting in bodily injury arising out of the events which occurred on or after September 4, 2004.
¶ 9 In a pretrial report, filed prior to the defendants' motion for summary judgment, the Hotel had notified the trial court and Omegbu that they intended to use the transcript of Omegbu's deposition at trial for impeachment purposes. In response, Omegbu filed a motion to strike the deposition and a motion in limine seeking prohibition of any reference of his deposition testimony during trial. Omegbu alleged that his deposition transcript should not be used because only portions of it had been filed in connection with the defendants-respondents' motion for summary judgment. Following these motions, and less than a week before trial, the defense counsel also advised the trial court and Omegbu, that the defendants-respondents intended to examine Omegbu about his two prior convictions, as relevant to his credibility.
¶ 10 A jury trial was held on May 22 and 23, 2006. At the outset, the trial court addressed the motion to strike and the motion in limine. The trial court held that the arguments underlying Omegbu's motions were without a basis in the law and the use of Omegbu's deposition transcript to impeach him was appropriate:
[The defendants had] to show me[, the judge,] in support of their motion for summary judgment why ... I should throw this case out and ... [t]hey [had] to do it based on evidence in the case, meaning either sworn affidavits or someone's sworn testimony, which is exactly what your[, the plaintiff's,] deposition was. So, the fact that they attached only portions of your deposition is exactly what they [were] supposed to do .... [And] as to your motion to strike your deposition [generally] ... [t]here is no basis in law or fact for the relief you ... ask for .... [P]arties can use, in a civil trial[,] ... deposition transcripts in a variety of ways to support either affirmative testimony or ... to impeach somebody that is on the stand .... So, your motions ... are denied.
¶ 11 The trial court also ruled that the court would allow the Hotel and Borchardt to use Omegbu's prior convictions for impeachment purposes.2 Omegbu did not dispute his two prior convictions. Rather, Omegbu objected because he wished to introduce additional information himself about the crimes of which he was convicted. While the trial court gave Omegbu permission to testify about the charges he was convicted of, it reminded Omegbu that he could not testify about what actually happened because such testimony would essentially turn the current trial into a re-trial of past criminal convictions. In addition, Omegbu claimed at the beginning of the trial that he was not permitted to procure a lawyer for the pretrial conference. The trial court's response made it clear that it never advised Omegbu that he could not retain a lawyer:
¶ 12 At the conclusion of the evidence, the defense moved for a directed verdict on the grounds that Omegbu had not proven any physical injuries, and that in the absence of physical injury, the plaintiff cannot recover damages for...
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