COURT OF APPEALS DECISION DATED AND FILED November 25, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from orders of the circuit court for
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Fidelis Omegbu, pro se, appeals from circuit court
orders entered on October 10, 2007, and November 21, 2007, following our remand
of his earlier appeal, Formula Four, Inc. v. Omegbu, No.
2006AP24, unpublished slip op. (WI App Nov. 7, 2006) (Omegbu I). He also purports to appeal from the final
orders of November 1, 2005, that we affirmed in Omegbu I. In Omegbu I, we considered Omegbu’s
objections to dismissals of his third-party claims against various entities and
their insurance companies, including Formula Four, Inc., Richard Bruss, State
Farm Fire and Casualty Company, State Farm Insurance Company, and Assurance
Company of
BACKGROUND
¶2 Because this case was previously before us, we limit our review of the facts to those essential for understanding our resolution of Omegbu’s current claims. Additional details may be found in Omegbu I.
¶3 Formula Four initiated this litigation by filing an eviction
action against Omegbu. Omegbu
counterclaimed, then added Formula Four’s insurer, which he misidentified as
Zurich Insurance Company. Omegbu
subsequently entered into a written stipulation regarding the correct name for
the insurer. The stipulation provided,
in pertinent part: “Zurich Insurance
Company is not a legal entity. … The correct insurance company is Assurance
Company of
¶4 In Omegbu I, we observed that, notwithstanding the stipulation and order, the circuit court granted summary judgment dismissing Omegbu’s claims against Assurance using the name “Zurich Insurance Company.” Omegbu I, No. 2006AP24, ¶5 n.4. We also stated that the Record reflects use of the name “State Farm Fire and Casualty Company” and the name “State Farm Insurance Company” to identify a single entity and that the circuit court used both names when dismissing Omegbu’s claims against this entity. Ibid. We affirmed the circuit court’s orders dismissing all of Omegbu’s claims; we remanded with directions to rectify the Record.[1]
¶5 Following remand, Omegbu filed motions for summary judgment against both Assurance and Continental Casualty. In a written order, the circuit court denied Omegbu’s motions, explaining that neither Continental Casualty nor Assurance were parties to the case in its current posture.
¶6 The circuit court also addressed our directions on
remand. The circuit court determined
that Omegbu
I required substituting “Assurance Company of
¶7 Omegbu moved twice for reconsideration. He then moved for relief from an oral ruling pronounced on October 17, 2005, pursuant to Wis. Stat. § 806.07(1)(a) and (2) (2005–06)[2] and Fed. R. Civ. P. 60(b).[3] The circuit court denied all of Omegbu’s motions, and this appeal followed.
DISCUSSION
¶8 We begin by determining the scope of our jurisdiction. See
Carla
B. v. Timothy N., 228
¶9 In light of the foregoing, we cannot review Omegbu’s contention that the circuit court erroneously granted summary judgment dismissing Omegbu’s claims by orders entered on November 1, 2005.[4] Omegbu appealed from those orders in Omegbu I, and this court affirmed. Omegbu’s current appeal permits us to consider final orders entered by the circuit court after remand, but it does not bring the earlier final orders granting summary judgment back before this court. An appeal from a final judgment or order brings before the court “prior nonfinal judgments, orders and rulings … not previously appealed and ruled upon.” See Wis. Stat. Rule 809.10(4). Thus, we do not consider Omegbu’s objection to the orders entered on November 1, 2005.
¶10 To resolve Omegbu’s remaining claims, we must consider whether,
and to what extent, the conclusions that we reached in Omegbu I govern Omegbu’s
challenges to the circuit court’s orders after remand. “A decision on a legal issue by an appellate
court establishes the law of the case that must be followed in all subsequent
proceedings in the case in both the circuit and appellate courts.” State v. Casteel, 2001 WI App 188, ¶15,
247
¶11 Omegbu asserts that the circuit court erred when it denied his
motion after remand for summary judgment against Assurance. Omegbu is wrong. In Omegbu I, this court determined that
the circuit court properly granted summary judgment dismissing all of Omegbu’s
causes of action against Assurance. See Omegbu I, No. 2006AP24, ¶¶1, 9, 10. That determination resolved a question of
law. See
Biskupic
v. Cicero, 2008 WI App 117, ¶12, ___
¶12 To the extent that Omegbu is contending that the circuit court improperly amended the order dismissing “Zurich” to reflect instead a dismissal of Assurance, that contention is meritless. In Omegbu I, we directed the circuit court to use Assurance’s proper name in the order dismissing Assurance from the action. See id., No. 2006AP24, ¶5 n.4. The circuit court was required to make this correction. See Wis. Stat. § 808.08(1) (circuit court must promptly execute an appellate court’s order to take specific action). Accordingly, the circuit court did not err in doing so.
¶13 Omegbu contends that he is entitled to continue pursuing claims
against Zurich because the circuit court did not dismiss Zurich from the litigation. That contention is nonsense. Omegbu stipulated that
¶14 Omegbu next contends that Continental Casualty remains a party
to this action because it “failed to obtain an order from the trial court on
dismissal.” Again, Omegbu is wrong. By order dated November 3, 2004, the circuit
court struck the amended complaint with which Omegbu attempted to join
Continental Casualty in this action. The
circuit court thereby effectively dismissed Continental Casualty from this
litigation. We so concluded in Omegbu I. See
id.,
No. 2006AP24, ¶6. Our
interpretation of the circuit court’s order resolved a question of law. See
Park
Manor, Ltd. v. DHFS, 2007 WI App 176, ¶13, 304 Wis. 2d 512, 520,
737 N.W.2d 88, 91. Accordingly, our
conclusion is the law of this case. See Casteel, 2001 WI App 188, ¶15, 247
¶15 Omegbu also asserts that either State Farm Insurance Company or
State Farm Fire and Casualty Company was not dismissed from the case, and he
should be able to continue his suit against one or the other. In fact, Omegbu may not pursue claims against
either. State Farm Insurance Company and
State Farm Fire and Casualty Company filed a single motion for summary judgment
dismissing all of Omegbu’s claims. The
circuit court granted the motion and dismissed all of Omegbu’s claims against
both State Farm Insurance Company and State Farm Fire and Casualty Company by
order dated November 1, 2005. The clerk
of circuit court entered judgment accordingly.
This court affirmed. See Omegbu I, No. 2006AP24, ¶¶1, 9,
10. Our affirmance resolved a question
of law. See Biskupic, 2008 WI App 117, ¶12, ___
¶16 The circuit court concluded that our decision in Omegbu
I did not require an amendment to the order and judgment dismissing
both State Farm Insurance Company and State Farm Fire and Casualty Company. Omegbu does not argue that the circuit court
reached that conclusion in error.[5]
Accordingly, any such argument is
waived. See Barakat v. DHSS, 191
¶17 In his appellate brief, Omegbu includes a statement of issues
as required by Wis. Stat. Rule
809.19(1)(b). The statement reflects
that five issues are presented for our review.
The argument sections of Omegbu’s appellate briefs, however, include
many digressions, including an analysis of the law governing protective orders
and a lengthy discussion concerning the direct action statute. These digressions generally lack a clear
connection to the contentions in the statement of issues, and they fail to
account for the effect of the prior appeal in this matter. We have limited our analysis to matters
essential for a resolution of the questions in Omegbu’s statement of
issues. “‘An appellate court is not a
performing bear, required to dance to each and every tune played on an
appeal.’” Turner v. DOR, 2004 WI
App 82, ¶7, 271
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Our directive to the circuit court provided:
[t]he record indicates that Zurich Insurance Company filed an answer. Later, it was determined that the correct name of the insurer for Formula Four was Assurance Company of America, and Assurance was substituted in for Zurich. The record also names State Farm Insurance Company as a party; however, the proper name of this party is State Farm Fire & Casualty Company, which was at times also referred to as a party in the record. The trial court, when signing the dismissal order, was apparently unaware of these substitutions and crossed out Assurance’s name, and incorrectly used the name State Farm Insurance Company. This error should be rectified on remand.
Formula Four, Inc. v. Omegbu, No. 2006AP24, unpublished slip op. ¶5 n.4 (WI App Nov. 7, 2006).
[2] All references to the Wisconsin Statutes are to the 2005–06 version unless otherwise noted.
[3] Omegbu’s
appellate briefs do not include any reference to Wis. Stat. § 806.07(1)(a) and (2) or Fed. R. Civ. P. 60(b). We deem abandoned any potential issue
regarding the application of this statute and rule to Omegbu’s claims for
relief. See A.O. Smith Corp. v. Allstate Ins. Cos., 222
[4] Omegbu contends here, as he did in Omegbu I, that the circuit court may not grant summary judgment when the moving party supports its motion with only excerpts from depositions.
[5] We observe that, in Omegbu I, we required the circuit court to correct the order and judgment misidentifying Assurance. The text of our mandate plainly did not require the circuit court to take more than one action. See id., No. 2006AP24, ¶5 n.4 (“[t]his error should be rectified on remand”).