author: HIGGINBOTHAM, J. DEININGER, J.

text:
    In re the Marriage of: Michelle Elizabeth Bernier n/k/a Michelle Elizabeth Vangelos, Petitioner-Respondent, v. Michel Carey Bernier, Respondent-Appellant.
    Court of Appeals

      No. 2004AP625.

      Submitted on briefs October 14, 2004.

      —Decided December 15, 2005.

    2006 WI App 2
    (Also reported in 709 N.W.2d 453.)

      On behalf of the respondent-appellant, the cause was submitted on the briefs of Laurie Roman of Haus, Roman and Banks, LLP, Madison.
    On behalf of the petitioner-respondent, the cause was submitted on the brief of Daphne Webb and Mar git Sandor Kelley of Stafford Rosenbaum LLP, Madison.
    Before Dykman, Deininger and Higginbotham, JJ.
   HIGGINBOTHAM, J.

¶ 1. This appeal arises from a circuit court judgment and order dividing equally the guardian ad litem fees and awarding attorney fees in a physical placement enforcement action brought under Wis. Stat. § 767.242 (2003-04). Michel Carey Bernier argues the circuit court erred by ordering him to pay fifty percent of the guardian ad litem fees. He claims that, as the prevailing party, he is entitled to recover his share of the guardian ad litem fees as part of "the cost of maintaining an action" under § 767.242(5)(b)l.b. Bernier further asserts the circuit court erroneously exercised its discretion when it awarded him less than half the attorney fees he incurred in successfully vindicating his rights under § 767.242.

¶ 2. Because we conclude the clear intent of Wis. Stat. § 767.242(5)(b)l.b. is to make whole prevailing parties seeking judicial enforcement of their physical placement rights and to provide a financial disincentive to custodial parents who interfere with the custodial rights of the other parent, we conclude the circuit court erred by requiring Bernier to pay fifty percent of the guardian ad litem fees. We further conclude the circuit court erroneously exercised its discretion by failing to sufficiently explain the basis for the amount of attorney fees awarded to Bernier. We do conclude, however, that the circuit court properly excluded attorney fees for the seventeen hours spent negotiating a settlement to this case. We therefore affirm in part, reverse in part, and remand for a hearing on the allocation of the guardian ad litem fees; an award of guardian ad litem fees to Bernier, and a determination as to the reasonableness of the attorney fees award in light of this decision.

FACTS

¶ 3. Michelle Vangelos (f/k/a Michelle Bernier) and Bernier were divorced on August 3, 2000. The judgment of divorce incorporated a Partial Marital Settlement Agreement providing that Vangelos could remove the parties' two children from Wisconsin to reside with her in California. The Partial Marital Settlement Agreement also, among other child-related provisions, sets forth Bernier's periods of physical placement.

¶ 4. In March 2003, Vangelos informed Bernier she would not be sending their son for the Easter 2003 placement and she was placing limitations on their daughter's placement with him during the same time period. Bernier sought and obtained an Injunction and Ex Parte Order in which the circuit court found

there is substantial cause for concern that [Vangelos] will violate the terms of the Judgment of Divorce by denying and/or interfering with [Bernier's] physical placement rights relating to the 2003 Easter school vacation....

The circuit court ordered placement over the 2003 Easter school vacation to occur as provided in the Partial Marital Settlement Agreement. The circuit court deferred Bernier's request for reasonable attorney fees and expenses incurred until after the hearing on his motions for Enforcement of Physical Placement Order and for Contempt.

¶ 5. In these two motions, Bernier alleged Vange-los had denied or interfered with his periods of physical placement on numerous occasions. He also alleged Vangelos had interfered with his legal custody rights by unilaterally implementing a de facto change in the children's last names from "Bernier" to "Vangelos" on their school records and on purchased airline tickets.

¶ 6. Following a hearing on Bernier's motions, the circuit court found that Vangelos unreasonably denied and interfered with Bernier's court-ordered physical placement rights and unreasonably interfered with his rights by the de facto change of the children's last names. The court ordered Vangelos to stop using the name "Vangelos" for the children and to change all records back to Bernier, correctly identifying him as the children's legal father. The court also awarded Bernier four make-up days and payment of $3,540 for expenses owed by Vangelos.

¶ 7. The circuit court further found that any relief available under Wis. Stat. § 767.242 would be ineffective in obtaining Vangelos's compliance with the court's orders and therefore issued a two-year injunction against her. The court awarded Bernier attorney fees and costs of $11,700, which was less than the actual attorney fees ($26,921.86) incurred by him in this action. The circuit court also ordered the parties to equally share the guardian ad litem's fees. Bernier appeals the circuit court's orders on the attorney fees and guardian ad litem fees.

DISCUSSION

Standard of Review

¶ 8. The first issue is whether a circuit court is required to award guardian ad litem fees to a prevailing petitioner in a Wis. Stat. § 767.242 physical placement enforcement proceeding as part of "the cost of maintaining an action under this section...Section 767.242(5)(b)l.b. This question involves the interpretation of three statutes: § 767.242(5)(b)l.b., Wis. Stat. § 814.04(2), setting forth disbursements as items of costs, and Wis. Stat. § 767.045(6), addressing compensation for guardians ad litem. Statutory interpretation is a question of law we review de novo. Van Erden v. Sobczak, 2004 WI App 40, ¶ 11, 271 Wis. 2d 163, 677 N.W.2d 718, review denied, 2004 WI 114, 273 Wis. 2d 655, 684 N.W.2d 136 (No. 2002AP1595).

¶ 9. "[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." State ex rel Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110. In construing a statute we are to give deference to the policy choices made by the legislature in enacting the law. Id. To that end, if the statutory language is plain and unambiguous, we apply the statute by giving it its usual and common meaning. Id., ¶ 45. We are to interpret statutory language in the context within which it is used, "not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶ 46.

Awarding Guardian Ad Litem Fees Under Wis. Stat. § 767.242(5)(b)l.b.

¶ 10. Bernier argues the circuit court erred when it ordered him to pay one-half the guardian ad litem fees. He asserts the guardian ad litem fees are part of his cost of maintaining the enforcement action or, in the alternative, reasonable attorney fees recoverable under Wis. Stat. § 767.242(5)(b)l.b. In either case, Bernier contends § 767.242(5)(b)l.b. is a mandatory cost and fee-shifting statute and therefore the circuit court was required to award him, from Vangelos, any guardian ad litem fees it allocated to him.

¶ 11. Wisconsin Stat. § 767.242, entitled "Enforcement of physical placement orders," was created by 1999 Wis. Act 9, § 3054de. In creating § 767.242, the legislature attempted to address the well-documented problem of parties violating physical placement orders and the legal system's seeming inability to enforce these orders. Christopher D. Walther, Wisconsin's Custody, Placement, and Paternity Reform Legislation, Wis. Lawyer, Apr. 2000, at 15, 49. Section 767.242 attempts to ameliorate these problems by establishing new physical placement enforcement mechanisms in family court. Walther, supra ¶ 11, at 49. Under § 767.242, a parent who has been awarded periods of physical placement pursuant to Wis. Stat. § 767.24 and has had one or more periods of physical placement denied or substantially interfered with by the other parent can petition the circuit court for a remedy or any combination of remedies set forth in § 767.242(5)(b).

¶ 12. Wisconsin Stat. § 767.242(5)(b)l.b. is a fee-shifting statute. Fee-shifting statutes such as this one "contemplate that those recovering under them will be made whole." Chmill v. Friendly Ford-Mercury of Janesville, Inc., 154 Wis. 2d 407, 413 n.2, 453 N.W.2d 197 (Ct. App. 1990). Bernier asserts that because § 767.242(5)(b)l.b. is a fee-shifting statute, the legislature intended to make petitioners "whole" not only by requiring the circuit court to impose the other remedies in the statute but also by awarding prevailing petitioners their cost of maintaining the action plus attorney fees which, in his view, includes guardian ad litem fees. He asserts that if he is not "made whole," the purpose underlying § 767.242 of vindicating parents whose physical placement rights have been interfered with will be undermined.

¶ 13. Vangelos counters that if the legislature intended to include guardian ad litem fees as part of the remedies contemplated under Wis. Stat. § 767.242(5)(b)l.b., it could have expressly done so. The fact that this statute does not expressly provide for the award of guardian ad litem fees, Vangelos asserts, supports the only reasonable inference that the legislature did not intend to make guardian ad litem fees subject to the statute. We agree with Bernier.

¶ 14. We first note that to effectuate the purpose of Wis. Stat. § 767.242, which is remedial in scope and purpose, the statute must be liberally construed. In that fight we consider the text of § 767.242(5)(b)l.b. to determine whether the legislature intended to award successful petitioners under this statute the reasonable cost incurred in enforcing their physical placement rights.

¶ 15. Wisconsin Stat. § 767.242(5)(b)l.b. provides that a circuit court shall "[a]ward the petitioner a reasonable amount for the cost of maintaining an action under this section and for attorney fees." Vangelos construes the language "the cost of maintaining an action" as referring to costs taxable under Wis. Stat. § 814.04(2). Vangelos asserts that § 814.04(2) expressly excludes guardian ad litem fees as part of the definition of costs under that statute and therefore guardian ad litem fees are not taxable. We agree with Vangelos that guardian ad litem fees are not recoverable as costs under § 814.04(2), but that is not the point. We believe, given the remedial and fee-shifting nature of § 767.242(5)(b)l.b., that the legislature intended a broader reading of the word "cost" under § 767.242(5)(b)l.b. than is urged by Vangelos.

¶ 16. Fee-shifting statutes reflect the legislative bodies' intent to provide relief for prevailing plaintiffs or, as in this case, petitioners, to encourage them to vindicate the rights established by the particular statute involved. The purpose of Wis. Stat. § 767.242(5)(b)l.b. is to provide a financial disincentive to custodial parents who interfere with the physical placement rights of the non-custodial parent and to enable and encourage the aggrieved parent to seek enforcement assistance by the court system. Vangelos's interpretation of § 767.242(5)(b)l.b. as it relates to awarding guardian ad litem fees would be contrary to the legislature's intent to provide a more robust mechanism to enforce a parent's physical placement rights. By not awarding guardian ad litem fees to a successful party in a § 767.242 proceeding, that parent would be required to shoulder part of the cost to vindicate his or her physical placement rights. In short, rather than creating an incentive to parents to exercise their physical placement rights, a wronged parent would be put in the position of footing a portion of the bill for enforcing those rights. This result is inappo-site to the whole notion of creating fee-shifting statutes.

¶ 17. Accordingly, we conclude a successful party in a Wis. Stat. § 767.242 proceeding is entitled to recover the guardian ad litem fees attributable to him or her as part of the "cost of maintaining an action" under § 767.242(5)(b)l.b. This reading of the statute insures that the full cost of enforcing physical placement rights falls on the interfering parent, not on the aggrieved parent.

¶ 18. Vangelos argues the legislature has already created a specific statute governing the award of guardian ad litem fees under Wis. Stat. § 767.045(6), which, in her view, trumps the more general provision of the fee-shifting statute of Wis. Stat. § 767.242(5) (b)l.b. She also points to the tradition of allocating guardian ad litem fees from the determination of an attorney fees award as evidence that § 767.242(5)(b)l.b. does not refer to guardian ad litem fees in its mandate that the circuit court "[a]ward the petitioner a reasonable amount... for attorney fees."

¶ 19. Wisconsin Stat. § 767.045(6) is part of § 767.045, entitled "Guardian ad litem for minor children." Section 767.045(6) specifically governs the compensation of guardian ad litems in actions affecting the family. This statute grants the circuit court the discretion to allocate the guardian ad litem fees between the parties and provides, in relevant part, "[t]he court shall order either or both parties to pay all or any part of the compensation of the guardian ad litem." In short, § 767.045(6) is the "go to" statute for determining how guardians ad litem are compensated in family matters.

¶ 20. Bernier contends his reading of Wis. Stat. § 767.242(5)(b)l.b., as we have adopted here, can be harmonized with the court's discretionary authority under Wis. Stat. § 767.045(6) in allocating guardian ad litem fees. We agree. The court's discretionary authority in allocating guardian ad litem fees under § 767.045(6) is not affected by the requirement under § 767.242(5)(b)l.b. that a prevailing party be awarded his or her guardian ad litem fees as part of the statute's broad remedial package. The circuit court would simply be required to apply its discretionary authority in allocating guardian ad litem fees within the context of the fee-shifting mechanism under § 767.242(5)(b)l.b.

¶ 21. The result of our analysis is that, pursuant to Wis. Stat. § 767.045(6), a circuit court may allocate guardian ad litem fees between the parties when it makes a finding that a respondent has intentionally and unreasonably denied physical placement or interfered with the petitioner's periods of physical placement. But when it makes one or both of those findings, the court must then award the petitioner whatever amount it has allocated to the petitioner. The circuit court did not do so here. We therefore remand to permit the circuit court to reconsider its order allocating the guardian ad litem fees and if it allocates any of those fees to Bernier, to then award to Bernier from Vangelos the amount allocated to Bernier.

¶ 22. We recognize this procedure may prove cumbersome in some cases but it preserves the legislative intent behind both Wis. Stat. §§ 767.045(6) and 767.242(5)(b). Admittedly, this procedure may burden a wronged petitioner where a respondent will not pay ordered guardian ad litem fees. In that instance a contempt order may issue, protecting the wronged parent to the greatest extent possible under the circumstances. However, this approach assists in protecting, where possible, fees a guardian ad litem reasonably expects will be paid.

Reasonable Attorney Fees Under Wis. Stat. § 767.242(5)(b)l.b.

¶ 23. While an award of attorney fees is mandatory under Wis. Stat. § 767.242(5)(b)l.b., once the petitioner prevails, our review of a circuit court's determination of an attorney fees award is limited to an erroneous exercise of discretion. Village of Shorewood v. Steinberg, 174 Wis. 2d 191, 204, 496 N.W.2d 57 (1993).

[T]he supreme court [has] recognized that the trial court is in an advantageous position to decide the reasonableness of requested attorney's fees. It is the trial court that observes the quality of legal services rendered, it is aware of the costs incurred in operating a law practice, and it knows or can readily find out the going rate for legal services in the community. Accordingly, we will give deference to the trial court's exercise of discretion.

Aspen Servs., Inc. v. IT Corp., 220 Wis. 2d 491, 495, 583 N.W.2d 849 (Ct. App. 1998) (footnote and citations omitted). A circuit court properly exercises its discretion if it examined the relevant facts, applied the proper standard of law and, using a demonstrated rational process, reached a reasonable conclusion. Randall v. Randall, 2000 WI App 98, ¶ 7, 235 Wis. 2d 1, 612 N.W.2d 737. This deferential standard of review acknowledges the circuit court's advantageous position in determining the reasonableness of a firm's rate and preparations. Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 575, 597 N.W.2d 744 (1999).

¶ 24. Bernier prevailed in this physical placement enforcement action and therefore was entitled to his reasonable attorney fees and his cost in bringing this action under the fee-shifting provisions of Wis. Stat. § 767.242(5)(b)l.b. He sought attorney fees and costs in the amount of $26,921.86. The circuit court reduced Bernier's attorney fees request to $11,700. Bernier challenges this award.

¶ 25. The circuit court explained its decision to reduce the fees for which Vangelos was required to reimburse Bernier by noting:

The Court finds that [Bernier's attorney's] method of billing and hourly rate are reasonable and consistent with local practice. However, the amount of time spent is out of proportion to the complexity of the case and the matters at issue. [Bernier] prevailed on his motion, but this action was at base a conventional post-divorce placement dispute which ballooned out of control. If this case had required expert testimony, psychological evaluations or other outside expertise, extensive discovery and trial preparation may have been justified. The hearing on July 25, 2003, however, took six hours and only two witnesses testified; Michelle and Carey. This Court cannot find reasonable nearly one hundred hours of discovery and preparation for the July 25th motion hearing.

¶ 26. From our review of the voluminous record, we agree this was not a complex case in terms of the issues. We also agree that the dispute certainly ballooned out of control, although we disagree with the circuit court's characterization as this case being simply a "post-divorce placement dispute" that went out of control. This case presents facts the legislature intended to address by creating Wis. Stat. § 767.242 and its associated remedies. But the question remains: Why did the dispute balloon out of control? An obvious answer is that Vangelos, by replying to Bernier's interrogatories by overly clever answers or by failing to tell the truth, caused Bernier's attorney to spend time seeking information that Vangelos could have made available early on.

¶ 27. For instance, Vangelos affirmatively alleged that her children with Bernier were registered under the last names of "Bernier" and "Vangelos." The records of the Ambuehl Elementary School, which Bernier eventually discovered, show Bernier's daughter registered as "Brittany Vangelos," with parents indicated as "Christopher/Michelle V" and her father's work phone listed with a 949 area code, an area code found in California, not Wisconsin. Vangelos also denied she changed the last names of either of Bernier's children. While that appears to he true in the sense that she had not petitioned a court to change the children's last name, it was untrue because exhibit 26, the Blue Cross of California letter, showed the family as Chris, Michelle, Michel, Brittany, and Eliana Vangelos. We need not use further examples of this sort of problem.

¶ 28. Other issues require a more intensive analysis. For instance, exhibit 35 is Bernier's motion for an ex parte injunction and order, which alleges that Vangelos refused to send one of the parties' children during Easter vacation, contrary to the Partial Marital Settlement Agreement. If true, or if Vangelos's reasons for refusing are based on an unreasonable interpretation of the agreement leading to the court's finding of unreasonable denial and interference, Vangelos should pay Bernier's fees for bringing the motion. The circuit court's findings in its August 18, 2003 order will he helpful in determining whether this and other issues ballooned out of control because Vangelos made resolution of the issues more time consuming due to her actions.

¶ 29. There are other possibilities for the dispute ballooning out of control. Paragraphs 25 and 34 of Bernier's attorney's affidavit requesting fees suggest Vangelos's attorneys' lack of cooperation necessitated increased discovery. It is of no matter whether Vangelos or her attorneys were responsible for the need for more discovery. Either way, if the affidavit is accurate, Van-gelos is responsible for the fees incurred in discovering a correct rendition of the facts.

¶ 30. Conversely, it is possible that Bernier's attorney over-tried the case or "ran the meter." The circuit court may have been addressing this issue by noting: "However, the amount of time spent is out of proportion to the complexity of the case and the matters at issue." But this does not answer the real question. Why did Bernier's attorney spend the time she spent on the case? Was it because Vangelos and perhaps her attorneys were attempting to impede discovery? Or could Bernier's attorney have adequately tried the case with less discovery? If so, which actions and what hours did she spend that were unnecessary? Was it necessary to raise other issues? An exercise of discretion answers the question: "Why did an uncomplicated case balloon out of control?"

¶ 31. We conclude, therefore, that we must remand to permit the circuit court to address the issues and questions we have posed, and to explain why and in what amount it orders Vangelos to pay an amount of attorney fees to Bernier's attorney. The circuit court may likely be required to take further evidence to resolve the issues we have identified.

¶ 32. Bernier next argues the circuit court improperly disallowed the seventeen hours devoted to negotiating a settlement with Vangelos because the settlement involved an amendment to an existing judgment. In disallowing the request, the court explained "[s]ubseetion (5)(d) of [Wis. Stat. § 767.242] prohibits the court from modifying the underlying custody or placement order except as specifically authorized. Any time devoted to that endeavor is not chargeable under the fee-shifting provisions of § 767.242." We agree with the circuit court that, in general, a party cannot obtain a modification to the physical placement order as part of a § 767.242 enforcement action. However, the circuit court, in the course of analyzing the statute, did not consider its full scope. While recognizing the statute provided exceptions to the rule prohibiting the court from modifying the underlying custody or placement order, the court failed to examine those exceptions to determine whether they applied to the facts of this case. We briefly discuss the exceptions and apply them to the facts of record.

¶ 33. As the circuit court explained, Wis. Stat. § 767.242(5)(d) prohibits it from modifying the underlying custody or physical placement order, except as provided in § 767.242(5)(b)l.a. and 2.a. Bernier asserts § 767.242(5) (b)2.a. applies to the facts here; thus, we will only address the applicability of that statute. Section 767.242(5)(b)2.a. states that a court may, "[i]f the underlying order or judgment relating to periods of physical placement does not provide for specific times for the exercise of periods of physical placement, issue an order specifying the times for the exercise of periods of physical placement." Thus, according to the plain language of § 767.242(5)(b)2.a., when read in conjunction with § 767.242(5)(d), while the general rule is that a circuit court is prohibited from modifying the underlying custody or physical placement order, the court may do so if the underlying order "does not provide for specific times" for exercising physical placement. Thus, the dispositive question is, did the settlement negotiations for which Bernier seeks recovery of his attorney's fees involve amending the underlying physical placement judgment and order to provide "for specific times for the exercise of periods of physical placement"? See § 767.242(5)(b)2.a.

¶ 34. Bernier claims settlement negotiations did address specific times for when he could exercise physical placement, which was not specified in the underlying physical placement order adopting the partial marital settlement agreement. However, Bernier points to no evidence of record indicating the nature of the subjects discussed during the seventeen hours of settlement negotiations the circuit court disallowed, except for two examples: the end of Easter placement and "what portion of Mr. Bernier's placement was to be considered a travel day . ..Moreover, our independent review of the record has not unearthed any evidence of the issues being negotiated.

¶ 35. Consequently, we cannot determine whether the time spent to negotiate those issues falls under the exception of Wis. Stat. § 767.242(5)(b)2.a. Bernier has not satisfied his burden of showing he is entitled to recover under § 767.242(5)(b)l.b. the reasonable attorney fees incurred to negotiate these issues. Accordingly, while we conclude-the circuit court failed to engage in a complete analysis under § 767.242(5) (b)2.a. and (5)(d) to determine whether Bernier is entitled to recover his reasonable attorney fees for the seventeen hours spent in negotiating a settlement to this case, we conclude the circuit court properly determined Bernier was not entitled to those fees because the record was insufficient to make that determination.

By the Court. — Judgment and order affirmed in part; reversed in part and cause remanded with directions.

DEININGER, J.

¶ 36. (dissenting). Because I conclude that Wis. Stat. § 767.242(5)(b)l.b. does not require the circuit court to order Vangelos to reimburse Bernier for the one-half share of guardian ad litem fees the court directed Bernier to pay, I respectfully dissent. I would also affirm the amount awarded to Bernier by the circuit court for attorney fees.

¶ 37. Determining whether Wis. Stat. § 767.242(5)(b)l.b. requires a prevailing petitioner to be awarded guardian ad litem fees as a "cost of maintaining an action under this section" presents a question of statutory interpretation. When we interpret a statute, we are to begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. If statutory language is unambiguous, we apply its plain meaning and look no further to determine the legislature's intent. See id., ¶ 46.

¶ 38. Instead of beginning with the statutory language at issue, however, the majority begins its analysis of the guardian-ad-litem-fees issue by considering what the author of an article in Wisconsin Lawyer had to say about the legislative purpose behind the enactment of Wis. Stat. § 767.242. Majority, ¶ 11. The majority also later concludes, without citation, that the legislature's intent was to encourage parties to vindicate their rights and to provide financial disincentives for a custodial parent to interfere with the other parent's placement rights. Majority, ¶ 16. These may well be goals the legislature had in mind when it enacted § 767.242, but, as a matter of statutory interpretation, we must first attempt to ascertain what the legislature intended regarding awardable costs from the language the legislature enacted into law. See Kalal, ¶¶ 45-46.1 conclude that, under the plain language of § 767.242(5)(b) 1 .b., guardian ad litem fees cannot be deemed a "cost of maintaining an action under this section."

¶ 39. If a petitioner under Wis. Stat. § 767.242 succeeds in convincing a judge or a circuit court commissioner that the other parent "has intentionally and unreasonably denied the petitioner one or more periods of physical placement or ... has intentionally and unreasonably interfered with one or more of the petitioner's periods of physical placement," the court "[s]hall... [ajward the petitioner a reasonable amount for the cost of maintaining an action under this section and for attorney fees." Wis. Stat. § 767.242(5)(b)l.b. (emphasis added). At first blush, any guardian at litem fees ordered to be paid by a petitioner might seem to be a "cost" of his or her maintaining a placement enforcement action. The term "cost," however, has a "technical or special definition" when used in statutes dealing with litigation costs, which definition, in my view, must be employed when interpreting this statute. See Kalal, 271 Wis. 2d 633, ¶ 45.

¶ 40. Wisconsin Stat. § 814.04 details the "items of costs" that are generally "allowed" to a prevailing party in civil litigation. That section specifically excludes guardian ad litem fees from being deemed a "cost": "Guardian ad litem fees shall not be taxed as a cost or disbursement." Section 814.04(2). We have relied on the statutory exclusion of guardian ad litem fees from "costs" in rejecting an argument that guardian ad litem fees are assessable against a parent who brings an arguably frivolous motion to modify physical placement. Lofthus v. Lofthus, 2004 WI App 65, ¶ 33 n.8, 270 Wis. 2d 515, 678 N.W.2d 393 ("[Section] 814.04(2) specifically excludes guardian ad litem fees as taxable. Moreover, the guardian ad litem's fees are not considered 'attorney fees' simply because the guardian ad litem is also a lawyer.").

¶ 41. Because guardian ad litem fees are statutorily excluded from being a taxable litigation "cost," if the legislature intended guardian ad litem fees to be awardable as a "cost of maintaining an action" under Wis. Stat. § 767.242(5)(b)l.b., it should have expressly said so. This is especially true given that the legislature was well aware that guardian ad litem fees will often be incurred in an enforcement action under § 767.242. See § 767.242(5)(a) ("The judge or circuit court commissioner may, on his or her own motion or the motion of any party, order that a guardian ad litem be appointed for the child prior to the hearing.").

¶ 42. Moreover, I also find it highly significant that guardian ad litem fees are the subject of a separate and specific statutory directive that applies to "any action affecting the family." See Wis. Stat. § 767.045(l)(a). The provision for compensating guardians ad litem appointed in proceedings under ch. 767 authorizes the circuit court to exercise discretion in allocating the responsibility for paying guardian ad litem fees between the parties. See § 767.045(6) ("The court shall order either or both parties to pay all or any part of the compensation of the guardian ad litem."); Tesch v. Tesch, 63 Wis. 2d 320, 339, 217 N.W.2d 647 (1974) ("The services of a guardian ad litem are to protect the interests of the children. Both of the parents are concerned that these interests be protected and that is the reason... where both spouses have ability to pay each should be required to contribute to the cost of the guardian ad litem, with the percentage to be paid by each parent left to the discretion of the trial court."). If this subsection were intended to govern the treatment of guardian ad litem fees in all proceedings under ch. 767 except an action under Wis. Stat. § 767.242, one would expect the legislature to have spelled out that exception.

¶ 43. Quite simply, the legislature has not specified in Wis. Stat. § 767.242(5)(b)l.b., or elsewhere, that, contrary to its directives regarding guardian ad litem fees in Wis. Stat. §§ 767.045(6) and 814.04(2), guardian ad litem fees must be awarded as a "cost of maintaining an action" under § 767.242(5)(b)l.b. For that reason, I cannot join the majority in concluding that the circuit court erred by not shifting to Vangelos the portion of guardian ad litem fees it had allocated to Bernier. Had the circuit court done as Bernier advocates, that, in my view, would have constituted error: " 'Many expenses of litigation are not allowable or taxable costs even though they are costs of litigation.' Thus, any award of a 'cost' which is not specifically authorized by a Wisconsin statute constitutes an error of law that must be reversed." Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138, 147, 549 N.W.2d 714 (1996) (citation omitted).

¶ 44. My principal reason for writing separately is my disagreement with the majority's interpretation of Wis. Stat. § 767.242(5)(b)l.b. on the issue of whether guardian ad litem fees are an awardable "cost" under that paragraph. Because I write separately, I must also explain whether I agree or disagree with the majority's conclusion that the circuit court erred in awarding attorney fees to Bernier in the amount that it did. I find I also cannot join that portion of the majority opinion.

¶ 45. As the majority notes, the determination of the amount of reasonable attorney fees to award under a fee-shifting statute is a matter for the circuit court's exercise of discretion, and we accord deference to that court's determination because it is in a better position than we to assess the reasonableness of requested fees in light of the facts and circumstances of the litigation that unfolded before it. Majority, ¶ 23. Under our deferential standard of review, I cannot conclude the circuit court erroneously exercised its discretion in awarding Bernier $11,700 in attorney fees as the prevailing petitioner in his placement enforcement action under Wis. Stat. § 767.242.

¶ 46. The supreme court has adopted the "lodestar" methodology for determining reasonable attorney fees to be awarded under fee-shifting statutes, and the court has "direct[ed] circuit courts to follow its logic when explaining how a fee award has been determined." Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶ 30, 275 Wis. 2d 1, 683 N.W.2d 58. Under the lodestar approach, the starting point is a determination of the number of hours reasonably expended multiplied by a reasonable hourly rate, with upward or downward adjustments made thereafter based on any factors in SCR 20:1.5 (2004) that may be relevant. Id., ¶ 29. Those factors are:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

SCR 20:1.5(a).

¶ 47. I conclude the trial court properly employed the lodestar method as directed by the supreme court in Kolupar to determine a reasonable amount of attorney fees to award to Bernier. The court explained its decision to award $11,700 in fees (instead of the $26,422.50 Bernier requested) as follows:

Cary's request for costs and attorney's fees in the amount of $26,921.86 is comprised of 135.5 hours of attorney time at $195.00 per hour plus $499.36 costs .... Of these hours, 20.75 were devoted to preparation for the Family Court Commissioner proceeding on April 8, 2003. Discovery consumed 41.5 hours between April 9 and June 24, 2003. In addition, between 40 and 50 hours were spent on trial preparation and trial time for the hearing on July 25, 2003. Carey's counsel also spent approximately 17 hours on proposed amendments to the parties' Marital Settlement Agreement.
Having presided over Michelle and Carey's divorce trial and post-divorce proceedings, the Court is well aware of the high level of animosity between these parties. This court has repeatedly admonished both parties to set aside their differences for the sake of their children, apparently to no avail. Nevertheless, Carey's attorney's fees request must be evaluated in light of the factors set forth in Stathus v. Horst.
The Court finds that Attorney Roman's method of billing and hourly rate are reasonable and consistent with local practice. However, the amount of time spent is out of proportion to the complexity of the case and the matters at issue. Carey prevailed on his motion, but this action was at base a conventional post-divorce placement dispute which ballooned out of control. If this case had required expert testimony, psychological evaluations or other outside expertise, extensive discovery and trial preparation may have been justified. The hearing on July 25, 2003, however, took six hours and only two witnesses testified; Michelle and Carey. This Court cannot find reasonable nearly one hundred hours of discovery and preparation for the July 25th motion hearing.
Moreover, the court cannot include the 17 hours allotted to preparation of proposed amendments to the Marital Settlement Agreement on a request for fees under § 767.242. Subsection (5)(d) of that statute prohibits the court from modifying the underlying custody or placement order except as specifically authorized. Any time devoted to that endeavor is not chargeable under the fee-shifting provisions of § 767.242.
There is no doubt that Attorney Roman represented her client zealously and effectively, achieving the result Carey sought. But, as stated above, the time spent was out of proportion to the nature of the motion and the complexity of the issues. Accordingly, to reach a reasonable amount, the attorney fee award shall be reduced as follows: 10 hours for obtaining the April 8 Family Court Commissioner Order; 20 hours discovery time related to the motion to enforce the placement order, and 30 hours for hearing preparation, court time, and follow-up associated with the motion hearing.
ORDER
For the reasons stated, IT IS ORDERED THAT Michelle Vangelos pay attorney's fees to Carey Bernier in the amount of $11,700, representing 60 hours at $195.00 per hour, plus costs in the amount of $499.36.

¶ 48. Thus, the circuit court awarded Bernier attorney fees based on its determination of a reasonable hourly rate ($195, as Bernier's counsel requested) multiplied by the number of hours the court concluded were reasonably expended in prosecuting the placement enforcement action (60 hours). In reducing the hours allowed from those requested (135.5 hours), the court considered an appropriate and relevant factor: the lack of novelty or complexity in the issues litigated. See SCR 20:1.5(a)(1). The majority agrees that "this was not a complex case in terms of the issues," and that the dispute 'ballooned out of control." Majority, ¶ 26. Furthermore, the majority specifically approves of the circuit court's disallowance of the seventeen hours devoted to negotiating an amendment to the existing judgment. Majority, ¶ 35. Rather than second-guessing the remainder of the circuit court's reductions in the hours claimed, I would conclude that the court "examined the relevant facts, applied the proper standard of law and, using a demonstrated rational process, reached a reasonable conclusion." Majority, ¶ 23 (citing Randall v. Randall, 2000 WI App 98, ¶ 7, 235 Wis. 2d 1, 612 N.W.2d 737).

¶ 49. I would affirm the appealed orders and therefore dissent.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Section 767.242(5) reads, in relevant part,
      (5) Hearing; remedies, (a) A judge or circuit court commissioner shall hold a hearing on the petition no later than 30 days after the petition has been served, unless the time is extended by mutual agreement of the parties or upon the motion of a guardian ad litem and the approval of the judge or circuit court commissioner. The judge or circuit court commissioner may, on his or her own motion or the motion of any party, order that a guardian ad litem be appointed for the child prior to the hearing.
      (b) If, at the conclusion of the hearing, the judge or circuit court commissioner finds that the respondent has intentionally and unreasonably denied the petitioner one or more periods of physical placement or that the respondent has intentionally and unreasonably interfered with one or more of the petitioner's periods of physical placement, the court or circuit court commissioner:
      1. Shall do all of the following:
      a. Issue an order granting additional periods of physical placement to replace those denied or interfered with.
      b. Award the petitioner a reasonable amount for the cost of maintaining an action under this section and for attorney fees.

       Bernier argues only that the circuit court erred in failing to require Vangelos to pay all of the guardian ad litem's fees pursuant to the cost-shifting provision under Wis. Stat. § 767.242(5)(b)l.b. That is, he does not claim that the court erroneously exercised its discretion in allocating one-half of the guardian ad litem fees to each party under Wis. Stat. § 767.045(6), making it unnecessary for me to address that question.

       The factors in SCR 20:1.5(a)(l), (3), and (7) (2004) are essentially subsumed in the determination of a reasonable number of hours and a reasonable hourly rate. See Lynch v. Crossroads Counseling Ctr., Inc., 2004 WI App 114, ¶ 40, 275 Wis. 2d 171, 684 N.W.2d 141.

       [Footnote by the circuit court] Carey retained Attorney Roman on April 3, 2003. Ms. Roman had not represented Carey before in this matter, so their attorney-client relationship was not longstanding.


source: Caselaw Access Project

author: VERGERONT, J.

license: Public Domain

text:
    Madison Metropolitan School District, Petitioner-Appellant, Joshua S., Petitioner, v. Elizabeth Burmaster, State Superintendent of Public Instruction, Respondent-Respondent.
    Court of Appeals

      No. 2005AP875.

      Submitted on briefs October 11, 2005.

      —Decided December 15, 2005.

    2006 WI App 17
    (Also reported in 709 N.W.2d 73.)

      On behalf of the petitioner-appellant, the cause was submitted on the briefs of David E. Rohrer, Lathrop & Clark LLP, Madison.
    On behalf of the respondent-respondent, the cause was submitted on the brief of Thomas J. Balistreri, asst, attorney general, and Peggy A. Lautenschlager, attorney general.

    Before Dykman, Vergeront and Deininger, JJ.
   VERGERONT, J.

¶ 1. Madison Metropolitan School District challenges the decision of the Wisconsin Superintendent of the Department of Public Instruction reversing the District's decision to expel a pupil, Joshua S. The Superintendent concluded that the District did not have the statutory authority to expel Joshua after the hearing officer appointed pursuant to Wis. Stat. § I20.l3(l)(e) to hear expulsion cases decided not to order expulsion. The circuit court affirmed the Superintendent's decision and the District appeals.

¶ 2. We conclude that the only reasonable construction of Wis. Stat. § 120.13(l)(e)3. is that, if a school district elects to have a hearing officer conduct an expulsion hearing, the district must comply with the procedures specified in that paragraph. Because para. (e)3. provides for review by the board of a hearing officer's decision only if the officer has ordered expulsion, the board did not have the authority to review and reverse the hearing officer's decision not to .order Joshua's expulsion. We therefore affirm the circuit court order affirming the Superintendent's decision.

BACKGROUND

I. Summary of Wis. Stat. § 120.13(1), "School government rules; suspension; expulsion"

¶ 3. Because the statutory framework regarding pupil expulsion is fundamental to understanding the procedural history of this case, we begin there. Wisconsin Stat. § 120.13(1) requires school boards to adopt codes of conduct meeting certain standards. Section 120.13(l)(c)l.-2. authorizes a school board to expel a pupil when it finds the pupil's conduct has met specified criteria. Section 120.13(l)(c)3. provides that "[p]rior to expelling a pupil, the school board shall hold a hearing," and the remainder of subds. 3. and 4. specify the procedure to be followed for that hearing, as well as the procedure for appealing the board's decision to the Department of Public Instruction and appealing the department's decision to the circuit court.

¶ 4. Wisconsin Stat. § 120.13(l)(e)l. provides that a school board may by resolution and on certain conditions authorize either an independent hearing panel or an independent hearing officer "to determine pupil expulsion . . . instead of using the procedure under par. (c)3." Subdivision 120.13(l)(e)3. prescribes the requirements for a hearing before the officer or panel in language substantially the same as that required for a hearing before the board under § 120.13(l)(c)3. and then provides:

Upon the ordering by the hearing officer or panel of the expulsion of a pupil, the school district shall mail a copy of the order to the school board, the pupil and, if the pupil is a minor, the pupil's parent or guardian. Within 30 days after the date on which the order is issued, the school board shall review the expulsion order and shall, upon review, approve, reverse or modify the order. The order of the hearing officer or panel shall be enforced while the school board reviews the order. The expelled pupil or, if the pupil is a minor, the pupil's parent or guardian may appeal the school board's decision to the state superintendent. If the school board's decision is appealed to the state superintendent, within 60 days after the date on which the state superintendent receives the appeal, the state superintendent shall review the decision and shall, upon review, approve, reverse or modify the decision. The decision of the school board shall be enforced while the state superintendent reviews the decision . . .

¶ 5. Additional procedures for the hearing before the officer or panel and for appeals are set forth in Wis. Stat. § 120.13(1) (e)4. and essentially track those for hearings before the board as set forth in § 120.13(1) (c)4., with these additions and modifications relevant to this appeal:

4. Not less than 5 days' written notice of the hearing under subd. 3. shall be sent to the pupil and, if the pupil is a minor, to the pupil's parent or guardian. The notice shall state all of the following:
g. That if the hearing officer or panel orders the expulsion of the pupil the school district shall mail a copy of the order to the school board, the pupil and, if the pupil is a minor, to the pupil's parent or guardian.
h. That within 30 days of the issuance of an expulsion order the school board shall review the order and shall, upon review, approve, reverse or modify the order.
i. That, if the pupil is expelled by the hearing officer or panel, the order of the hearing officer or panel shall be enforced while the school board reviews the order.

II. Factual and Procedural Background

¶ 6. Joshua, a sixth grader, was charged by the District with violating district policy by possessing an object that might be used as a weapon — a pencil — and by using it to stab a fellow pupil in the arm on school property. After a hearing on the charges took place before a hearing officer, the officer concluded that Joshua had violated district policy by stabbing another pupil with a pencil, but that the interest of the school did not require Joshua's expulsion. The officer's decision stated that Joshua was a young sixth grader who was an honor pupil, was remorseful about what happened, had no prior infractions, had not been disciplined before and said he would continue in counseling. Also, several professionals testified that he posed no future risk to the school community. The five-day suspension that Joshua had already received, the officer concluded, was adequate punishment in light of these factors. The officer entered an order that Joshua not be expelled.

¶ 7. The district board of education reviewed the hearing officer's decision. Joshua was invited to submit written comments to the board but was not invited to attend the closed executive session. In addition to the hearing officer's decision and documentation, the board had before it a memorandum from the district administrator to the board setting forth the administration's position that the board should order expulsion despite the hearing officer's decision. Joshua was not given a copy of this memorandum prior to the board's review and decision. The board reversed the hearing officer's decision and ordered that, effective on that date, May 17, 2004, Joshua be expelled until the beginning of the second semester of the 2004-05 academic year, with provisions for earlier admittance to an alternative or regular educational program on certain conditions.

¶ 8. Joshua appealed the board's decision to the Superintendent. The Superintendent concluded that three procedural errors required reversal of the expulsion order. First, the board had not adopted a resolution as required by Wis. Stat. § 120.13(1)(e) if a board uses an independent hearing officer to hear expulsion cases rather than itself hearing the cases under § 120.13(l)(c)3. Second, the Superintendent ruled, the board did not have the statutory authority to review the decision of the hearing officer because § 120.13(l)(e)3. permitted a school board that has appointed an independent hearing officer to review only orders expelling a pupil. Third, the Superintendent determined that the board meeting was more than a review because the board considered the additional information of the district administrator's memorandum, and this violated paras. (e)3. and (c)3., which together provide for a hearing before either an independent hearing officer or the board, but not both. The Superintendent rejected the board's argument that under Wis. Stat. §§ 120.13 (intro), 120.12, and 118.001, the board's "plenary powers" included the authority to review the hearing officer's decision.

¶ 9. The District petitioned the circuit court for review of the Superintendent's decision and the circuit court affirmed. The circuit court concluded that under the plain language of Wis. Stat. § 120.13(1)(e)3. the board did not have the authority to review the decision of the hearing officer.

ANALYSIS

¶ 10. The District argues on appeal, as it did before the Superintendent and in the circuit court, that Wis. Stat. § 120.13(l)(e) does not prohibit the board from reviewing and reversing the hearing officer's decision and that it has this authority under the language of Wis. Stat. § 120.12(1) in view of the expanded powers given the school board under Wis. Stat. § 118.001 and, independently, under the introductory language of § 120.13.

¶ 11. We review the decision of the Superintendent, not that of the circuit court, and our standard of review is the same as that of the circuit court. See Target Stores v. LIRC, 217 Wis. 2d 1, 11, 576 N.W.2d 545 (Ct. App. 1998). The issue presented is one of statutory construction, which is a question of law. Kannenberg v. LIRC, 213 Wis. 2d 373, 384, 571 N.W.2d 165 (Ct. App. 1997). Although courts are not bound by an agency's construction of a statute, we may give varying degrees of deference to the agency's construction in certain situations. Id. at 384-85.

¶ 12. The parties dispute whether we should defer to the agency, and, if so, how much. The Superintendent argues that we should accord its construction of the board's statutory authority great weight, while the board argues we should accord it no deference and review de novo the issue of the proper construction of the statutes. We conclude that it is unnecessary to resolve this dispute because, even if we review the issue de novo, our conclusion is that the Superintendent's construction was correct, though we employ a somewhat different analysis.

¶ 13. When we construe a statute, we begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language in the context in which it is used, not in isolation but as part of a whole, in relation to the language of surrounding or closely related statutes, and we interpret it reasonably to avoid absurd or unreasonable results. Id., ¶ 46. We also consider the scope, context, and purpose of the statute insofar as they are ascertainable from the text and structure of the statute itself. Id., ¶ 48. If, employing these principles, the meaning of the statute is plain, then we apply that language to the facts at hand. Id., ¶¶ 45-50.

¶ 14. In this case, we begin with the language of Wis. Stat. § 120.13(l)(e)3., which specifies the procedure to be used when a school board elects to use a hearing officer to conduct the hearing required under § 120.13(1)(c) rather than conducting the hearing itself. After describing requirements for the hearing, this subdivision states: "Upon the ordering by the hearing officer or panel of the expulsion of a pupil, the school district shall mail a copy of the order to the school board, the pupil and, if the pupil is a minor, the pupil's parent or guardian." Section 120.13(l)(e)3. This notice is plainly required only when the officer orders expulsion. The next sentence, which describes the school board's authority, plainly refers only to an order to expel: "Within 30 days after the date on which the order is issued, the school board shall review the expulsion order and shall, upon review, approve, reverse or modify the order." Id. (emphasis added). The next sentence is consistent with the board's review of only expulsion orders: "The order of the hearing officer . . . shall be enforced while the school board reviews the order." Id. If the officer had not ordered expulsion, there would be nothing to enforce. We conclude the plain language of § 120.13(1) (e)3. provides for a review by the school board only when the hearing officer orders expulsion.

¶ 15. The District argues that Wis. Stat. § 120.13(l)(e)3. requires review by the school board only when the hearing officer orders an expulsion and is silent on review by the board when the hearing officer does not order an expulsion. According to the District, mandating review for expulsion orders does not prohibit review of decisions not to expel, and nothing in § 120.13(l)(e) or (c) prohibits this. The District asserts that it is therefore proper to look at other statutes that describe the duties and powers of school boards in broad language, and these, in the District's view, do authorize school boards to review hearing officers' decisions not to expel, even though there is no mention of this in § 120.13(l)(e).

¶ 16. The District first directs our attention to Wis. Stat. § 120.12(1), which provides that a school board shall:

(1) ... .[sjubject to the authority vested in the annual meeting and to the authority and possession specifically given to other school district officers, have the possession, care, control and management of the property and affairs of the school district, except for property of the school district used for public library purposes under s. 43.52.

The District contends that the phrase "care, control, and management of the property and affairs of the school district" encompasses review of a hearing officer's decision not to expel a pupil. The District first acknowledges that case law has in the past construed the statutory authority of school boards under the enumerated powers doctrine, whereby the powers were limited to those expressly conferred by statute or necessarily implied. See, e.g., Iverson v. Union Free High Sch. Dist., 186 Wis. 342, 353, 202 N.W. 788 (1925). However, the District continues, the legislature plainly adopted a different approach in Wis. Stat. § 118.001. Section 118.001 was enacted by 1995 Wis. Act 27, § 3931, which provides:

Section 3931. 118.001 of the statutes is created to read:
118.001 Duties and powers of school boards; construction of statutes. The statutory duties and powers of school boards shall be broadly construed to authorize any school board action that is within the comprehensive meaning of the terms of the duties and powers, if the action is not prohibited by the laws of the federal government or of this state.

According to the District, when § 120.12(1) is read in light of § 118.001, the former must be read to include the authority of the school board to review a hearing officer's decision not to expel a pupil, even though it is not expressly referred to in Wis. Stat. § 120.13(l)(e)3.

¶ 17. The District also relies on the introductory language to Wis. Stat. § 120.13, which is titled "School board powers":

The school board of a common or union high school district may do all things reasonable to promote the cause of education, including establishing, providing and improving school district programs, functions and activities for the benefit of pupils, and including all of the following!.]

This language was added to § 120.13 by 1995 Wis. Act 27, § 4024, after § 120.13(l)(e) was enacted. The District describes this language as an "independent delegation of statutory authority" that makes all the provisions in § 120.13(l)-(35) illustrations of a school board's authority rather than an exhaustive list. Thus, asserts the District, a school board has the authority to review hearing officers' decisions not to expel a pupil even though that is not mentioned in § 120.13(l)(e)3. because that statutory provision is illustrative only and such a reviewing role is "reasonable to promote the cause of education." Section 120.13 (intro).

¶ 18. We agree with the District that the enactment of Wis. Stat. §§ 118.001 and 120.13 (intro) expresses the legislature's intent to give school boards broader powers and wide discretion in exercising those powers. Pritchard v. Madison Metro. Sch. Dist, 2001 WI App 62, ¶ 14, 242 Wis. 2d 301, 625 N.W.2d 613. However, we do not agree that those statutes mean that, where the legislature had previously authorized the board to take particular actions using specified procedures, as it did in § 120.13(l)(e)3., the board now has the authority to follow other procedures in taking those particular actions.

¶ 19. Wisconsin Stat. § 120.13(1)(c) and (e) give the school board the authority to expel a pupil when specific substantive standards are met and specific procedures have been followed. Part of the specified procedure is that, if the school board adopts a resolution allowing a hearing officer to conduct a hearing, the school board reviews all orders to expel a pupil. Section 120.13(l)(e)3. The manner of giving notice to the pupil about this procedure — and about the school board's authority to review and reverse, modify or affirm the officer's decision — is carefully spelled out. See § 120.13(l)(e)4.g.-i. The legislature's "silence" on school board review of a hearing officer's decision not to expel cannot be reasonably understood to mean that such review is optional, because there are no concomitant procedural safeguards for the pupil in that situation. For example, there is a time limit for the school board's review of the expulsion order, but that does not, by the plain language, apply to the board's review of a decision not to expel. Section 120.13(l)(e)3. There is a requirement of notice to a pupil that the board will review an expulsion order and either approve, reverse or modify the order, § 120.13(l)(e)4.h., but there is no requirement of notice to a pupil that the school board will also review a decision not to expel and may reverse that. A primary purpose of the procedures specified in § 120.13(l)(e)3. and 4., evident from the text, is to provide safeguards for a pupil against whom a school district initiates expulsion proceedings. The legislature could not have intended to afford procedural protections to pupils for school board review of an unfavorable decision but leave it up to each school board to decide on the procedure if a board chooses to review decisions favorable to the pupil.

¶ 20. The logic of the District's decision makes much of Wis. Stat. § 120.13(1) meaningless. For example, subd. (c)l. provides that the "school board may expel a pupil from school whenever it finds" that the pupil's conduct meets certain criteria. See supra note 2. However, adopting the District's position would mean that this is simply illustrative of reasons the school board may expel a pupil and the board is free to suspend pupils for other reasons. This is not a reasonable reading of § 120.13(1), and it is not required by the introductory language of § 120.13. Rather, the introductory language, when read in the context of the rest of § 120.13, can only reasonably mean that, while school hoards have powers beyond those enumerated in sub-secs. (l)-(37), they do not have the power to violate the provisions of subsecs. (l)-(37). Given the specificity with which the legislature has expressed the substantive and procedural requirements for expelling a pupil in § 120.13(l)(c)-(g), the only reasonable reading of those subsections is that the legislature intended to prohibit expulsions that did not conform with the statutory requirements. Thus, the introductory language of § 120.13 does not give boards the power to expel a pupil using other standards or procedures.

¶ 21. For much the same reason, the board's powers of "care, control, and management of the property and affairs of the school district" found in Wis. Stat. § 120.12(1), even when considered in light of the principles of broad statutory construction in Wis. Stat. § 118.001, cannot reasonably be read to permit a school board to expel a pupil using standards or procedures other than those specified in Wis. Stat. § 120.13(l)(c)-(g).

¶ 22. The District argues that our decision in Pritchard, 242 Wis. 2d 301, supports its position, but we do not agree. The statute that was challenged unsuccessfully in Pritchard as a limitation on the District's authority is not analogous to Wis. Stat. § 120.13(l)(c)-(g). That statute, Wis. Stat. § 66.185 (1997-98), was amended by 1959 Wis. Laws, ch. 179, to give municipalities, which includes school districts, the authority to provide health insurance benefits to the spouses and dependant children of their employees and officers. Id., ¶¶ 9, 14. We concluded § 66.185 does not prohibit the District from providing health insurance benefits to other persons, if that authority is granted by other statutes. Id., ¶ 10. We further concluded that the powers granted the District under § 120.13 (intro) and other provisions in ch. 120, broadly construed as mandated by Wis. Stat. § 118.001, include the power to provide health insurance benefits to designated family partners of employees. Id., ¶¶ 15-16. In contrast to our construction of § 66.185, here we have concluded that § 120.13(l)(c)-(g) plainly expresses the legislature's intent that a school board may expel a pupil only if it applies the standards and procedures specified in those subdivisions.

¶ 23. In summary, we conclude that the only reasonable construction of Wis. Stat. § 120.13(l)(e)3. is that, if a school district elects to have a hearing officer conduct an expulsion hearing, the district must comply with the procedures specified in that paragraph. The broad grant of powers given school boards in Wis. Stat. §§ 120.12(1) and 120.13 (intro), even when liberally construed as mandated by Wis. Stat. § 118.001, cannot, when read together with § 120.13(l)(c)-(g), be reasonably read to give school boards the authority to expel a pupil using standards or procedures that do not meet the requirements of § 120.13(l)(c)-(g). Because para. (e)3. provides for review by the board of a hearing officer's decision only if the officer has ordered expulsion, the board here did not have the authority to review and reverse the hearing officer's decision not to order Joshua's expulsion.

By the Court. — Order affirmed.

       All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

       Wisconsin Stat. § 120.13(l)(c)l.-2. provides:
      (1) School government rules; suspension; expulsion.

        (c) 1. The school board may expel a pupil from school whenever it finds the pupil guilty of repeated refusal or neglect to obey the rules, or finds that a pupil knowingly conveyed or caused to be conveyed any threat or false information concerning an attempt or alleged attempt being-made or to be made to destroy any school property by means of explosives, or finds that the pupil engaged in conduct while at school or while under the supervision of a school authority which endangered the property, health or safety of others, or finds that a pupil while not at school or while not under the supervision of a school authority engaged in conduct which endangered the property, health or safety of others at school or under the supervision of a school authority or endangered the property, health or safety of any employee or school board member of the school district in which the pupil is enrolled, and is satisfied that the interest of the school demands the pupil's expulsion. In this subdivision, conduct that endangers a person or property includes making a threat to the health or safety of a person or making a threat to damage property.
      2. In addition to the grounds for expulsion under subd. 1., the school board may expel from school a pupil who is at least 16 years old if the school board finds that the pupil repeatedly engaged in conduct while at school or while under the supervision of a school authority that disrupted the ability of school authorities to maintain order or an educational atmosphere at school or at an activity supervised by a school authority and that such conduct does not constitute grounds for expulsion under subd. 1., and is satisfied that the interest of the school demands the pupil's expulsion.

       WISCONSIN Stat. § 120.13(l)(c)3.-4. provides:
      3. Prior to expelling a pupil, the school board shall hold a hearing. Upon request of the pupil and, if the pupil is a minor, the pupil's parent or guardian, the hearing shall be closed. The pupil and, if the pupil is a minor, the pupil's parent or guardian may be represented at the hearing by counsel. The school board shall keep written minutes of the hearing. Upon the ordering by the school board of the expulsion of a pupil, the school district clerk shall mail a copy of the order to the pupil and, if the pupil is a minor, to the pupil's parent or guardian. The expelled pupil or, if the pupil is a minor, the pupil's parent or guardian may appeal the expulsion to the state superintendent. If the school board's decision is appealed to the state superintendent, within 60 days after the date on which the state superintendent receives the appeal, the state superintendent shall review the decision and shall, upon review, approve, reverse or modify the decision. The decision of the school board shall be enforced while the state superintendent reviews the decision. An appeal from the decision of the state superintendent may be taken within 30 days to the circuit court of the county in which the school is located.
      4. Not less than 5 days' written notice of the hearing under subd. 3. shall be sent to the pupil and, if the pupil is a minor, to the pupil's parent or guardian. The notice shall state all of the following:
      a. The specific grounds, under subd. 1., 2. or 2m., and the particulars of the pupil's alleged conduct upon which the expulsion proceeding is based.
      b. The time and place of the hearing.
      c. That the hearing may result in the pupil's expulsion.
      d. That, upon request of the pupil and, if the pupil is a minor, the pupil's parent or guardian, the hearing shall be closed.
      e. That the pupil and, if the pupil is a minor, the pupil's parent or guardian may be represented at the hearing by counsel.
      f. That the school board shall keep written minutes of the hearing.
      g. That if the school board orders the expulsion of the pupil the school district clerk shall mail a copy of the order to the pupil and, if the pupil is a minor, to the pupil's parent or guardian.
      h. That if the pupil is expelled by the school board the expelled pupil or, if the pupil is a minor, the pupil's parent or guardian may appeal the school board's decision to the department.

        i. That if the school hoard's decision is appealed to the department, within 60 days after the date on which the department receives the appeal, the department shall review the decision and shall, upon review, approve, reverse or modify the decision.
      j. That the decision of the school hoard shall be enforced while the department reviews the school board's decision.
      k. That an appeal from the decision of the department may be taken within 30 days to the circuit court for the county in which the school is located.
      L. That the state statutes related to pupil expulsion are ss. 119.25 and 120.13 (1).

       The procedural facts of what took place before the board are taken from the decision of the Superintendent and there is no dispute over them.

       The Superintendent also pointed out that the board had not adopted the "plenary powers" that "may" grant the board the authority to modify the specific statutorily required procedures for expulsion. In a footnote the Superintendent stated that this statement was not intended to convey that the board could avoid those statutory requirements by adopting "plenary powers" under Wis. Stat. § 120.13 (intro.). The District argues in a footnote that neither Pritchard v. Madison Metropolitan School District, 2001 WI App 62, ¶ 14, 242 Wis. 2d 301, 625 N.W.2d 613 nor Wis. Stat. § 118.001 mention any need to specifically adopt "plenary powers." The Superintendent does not respond to this argument and does not refer to the board's failure to adopt "plenary powers" as a reason to affirm the Superintendent's decision. Therefore, we do not address this issue.
      The Superintendent took up two additional issues, which, it concluded, did not require reversal. First, the Superintendent criticized the board's procedure of considering the administrator's memorandum without first providing it to Joshua, but decided that this was not a violation of his right to due process because the memorandum contained no new information. Second, the Superintendent rejected Joshua's argument that the board did not consider his argument that he was acting in self-defense.

       The Superintendent is not arguing on appeal that reversal of the board's order to expel is required because the District did not adopt a resolution, as required by Wis. Stat. § 120.13(l)(e)l., authorizing a hearing officer to conduct the hearing. Therefore, we do not address this issue.


author: SNYDER, PJ.

text:
    William J. Schimmels, Plaintiff-Appellant, v. John A. Noordover, Defendant-Respondent.
    Court of Appeals

      No. 2004AP2794.

      Submitted on briefs August 24, 2005.

      —Decided December 21, 2005.

    2006 WI App 7
    (Also reported in 709 N.W.2d 466.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs oí John W Hein and Melinda A. Hein of Godfrey, Braun & Frazier, LLP, Milwaukee.
    On behalf of the defendant-respondent, the cause was submitted on the brief of Robert B. Moodie and Lori J. Fabian of Hippenmeyer, Reilly, Moodie & Blum, S.C., Waukesha.
    Before Snyder, PJ., Nettesheim and Anderson, JJ.
   SNYDER, PJ.

¶ 1. William J. Schimmels appeals from an order declaring his rights as against John A. Noordover to the use of a private road designated in a recorded plat and an order denying reconsideration. Schimmels contends that the circuit court erred in deciding the action based upon the language of the deeds rather than upon the recorded plat. We agree and reverse.

BACKGROUND

¶ 2. Schimmels and Noordover own lots in Peterson's Plat (Plat). The Plat, containing nine original lots, was recorded with the Waukesha County Register of Deeds on October 5, 1913, as document no. 83262. Four of the lots, 6 through 9, have direct access to Okauchee Lake. The remaining five lots, 1 through 5, do not have direct lake access. The Plat contains a "private road" that provides all nine lots with access to the public highway. At one juncture, the private road splits, with one artery providing public highway access to Lots 6 through 9, and the other artery providing access to Okauchee Lake.

¶ 3. That portion of the private road leading to Okauchee Lake is known as Tweeden Lane. Tweeden Lane, a 20-foot wide by approximately 113-foot long grassy strip of land, is the subject of this lawsuit. On August 26,1914, the original Lot 6 was divided into two lots, creating ten separate lots in Peterson's Plat rather than nine. When the original owners divided Lot 6, they referred to that portion of road now known as Tweeden Lane as a "private road."

¶ 4. Noordover acquired his Lot 6 parcel on May 13, 1985, and Schimmels acquired his Lot 6 parcel on March 6, 1992. Noordover's deed recites that the conveyance includes "the use of a private road abutting said premises in common with others having the right to the use thereof and leading to the public highway." Schim-mels' deed contains similar language. Neither deed references Tweeden Lane or access to Okauchee Lake, but both expressly refer to the original recorded plat in the legal description of the property.

¶ 5. In 1997, Noordover constructed a retaining wall and planted hostas entirely within the Tweeden Lane area. In response, Schimmels sued to abate Noordover's use of Tweeden Lane in a manner that he claimed interfered with his property rights as the co-owner of Lot 6.

¶ 6. The action was tried to the circuit court. On January 15, 2004, an oral decision was issued which held in part:

Ido not decide what rights [exist] in relationship to Lots 1, 2, 3, 4 and 5 .. ..
[Or] against Lots 7, 8 and 9.
Lot 6 was divided. [And Schimmels] has the right triangle of Lot 6 and [Noordover] has the left triangle of Lot 6. And I only decide what are the rights between the owners of Lot 6.
Now, I understand here the argument is that it's a private roadway and the plat map shows the extension. But as indicated earlier, this deed doesn't show it was for ingress and egress to the lake, nor does the testimony establish that that was the purpose for use by the right-hand half of Lot 6.
In these [Lot 6] deeds, language states: "Together with the use in common with others of a private road abutting said premises leading to the highway." These deeds completely lack any reference that the purpose of this private road known as Tweeden Lane was for the purpose of ingress and egress to the lake for purposes of using a bathing beach or fishing or otherwise.
[I]t will be the decision of this Court that the deeds do not grant to [Sehimmels] a right of ingress and egress to Okauchee Lake. However, the law of this case allows [Sehimmels] the use of Tweeden Lane for ingress and egress to Okauchee Lake and to the public highway. The Court will have to define what ingress and egress to Okauchee Lake can be utilized by [Sehimmels].
[T]he ingress and the egress that is granted to [Schim-mels] is for the limited purpose of fishing and of swimming.

¶ 7. Findings of Fact and Conclusions of Law memorializing the oral decision were entered on June 16, 2004. The circuit court deleted several items from the Conclusions of Law prior to its approval of the final judgment, including, over Sehimmels1 objection, the following conclusions:

1. The 1913 Plat is valid and binding on each subdivision owner.
2. The Plat was recorded pursuant to secs. 101.2261, 101.2268 and 101.2269, Stats. (1913).
3. The Private Road on said Plat is held in joint ownership by dedication.

Thus, as of June 16, 2004, the court's conclusions were, in relevant part:

4. The recorded Plat and recorded deeds do not afford permitted users of the portion of said Private Road that lies between defendant's lot and Okauchee Lake (the "Subject Roadway") ingress and egress to Okauchee Lake.
6. When Lot 6 was divided, that was the opportunity to clearly reserve certain rights, if they existed, to owners of the right-hand portion of Lot 6.
7. The court's decision is limited to the rights between the plaintiff, William Schimmels, and the defendant, John Noordover, as they relate to the Subject Roadway.
8. It is the law of the case that the plaintiff and defendant have the use of the Subject Roadway for ingress and egress to Okauchee Lake. This ingress and egress shall be limited to fishing and swimming. The subject roadway may not be used for the storage of items, parking of cars, launching boats or taking out things such as a pier or a boat lift.

¶ 8. Schimmels moved for reconsideration or a new trial. He sought reinstatement of the stricken Conclusions of Law as well as reconsideration on several other issues. Noordover responded that "the Court properly struck Conclusions of Law 1, 2, 3 ... since those were not aspects of the case" and that Schimmels failed "to raise those kinds of issues" during the trial proceedings.

¶ 9. At the reconsideration hearing, Schimmels also requested that Conclusion of Law No. 4, which held that the recorded deeds and Plat do not afford permitted users ingress and egress to Okauchee Lake, be struck from the judgment as unnecessary and inconsistent with Conclusion of Law No. 8, which holds that the law of the case is that Schimmels and Noordover have rights of ingress and egress to Okauchee Lake. Noor-dover took no position on this request. The circuit court denied the motion to strike Conclusion of Law No. 4 in its entirety, but did substitute "the plaintiff' for "permitted users" in the provision, resulting in a final revision of the Conclusions of Law on August 3, 2004. Schimmels appeals from the original order and from the order denying his motion for reconsideration.

DISCUSSION

¶ 10. Noordover concedes that "[t]he purpose of Schimmels' lawsuit was in fact to declare the interest of the parties in Tweeden Lane." The central issue on appeal is the legal effect of the existence and placement of the grant of access to Okauchee Lake by way of Tweeden Lane as part of the private road included in Peterson's Plat. We accept the circuit court's determination that the grant of the private road right to Plat owners, including Tweeden Lane, is unambiguous. The meaning of unambiguous documents is a question of law which we review de novo. Negus v. Madison Gas & Elec. Co., 112 Wis. 2d 52, 60, 331 N.W.2d 658 (Ct. App. 1983).

¶ 11. In the circuit court's final determination, Schimmels' right to access Okauchee Lake by Tweeden Lane was as follows:

The recorded Plat and recorded deeds do not afford [Schimmels] the portion of said Private Road that lies between defendant's lot and Okauchee Lake (the "Subject Roadway") ingress and egress to Okauchee Lake.

We cannot agree. The law regarding platted land and the rights of lot owners reaches back over a century and is well summarized as follows:

[W]hen the grantee of a lot so platted, purchases it, the existence of the streets as platted, inasmuch as they add value to the lot by the conveniences or advantages which they promise, is an inducement to the purchaser, and so enters into the consideration, as between the grantor and grantee, and operates by way of implied covenant, implied grant, estoppel, or dedication, whichever way of operation may be the truer, to secure to the grantee a right of way over such platted streets, and reciprocally to subject any interest which the grantee may acquire therein to a right of way for the benefit of the other platted lots.

Chapin v. Brown, 10 A. 639, 641 (R.I. 1887). More recently, Wisconsin's approach to this historic rule was captured by the Seventh Circuit Court of Appeals:

One who buys lots with reference to a plat which shows certain streets, ways and places in common, is entitled with all other lot owners in the platted area or subdivision to the use with them of the streets, ways and places in common. Lot owners in the same subdivision whose lots are purchased with reference to the same plat are estopped to deny the use in common with other lot owners in the subdivision.

Threedy v. Brennan, 131 F.2d 488, 490 (7th Cir. 1942) (citing McFarland v. Lindekugel, 107 Wis. 474, 83 N.W. 757 (1900)); Donohoo v. Murray, 62 Wis. 100, 22 N.W 167 (1885); Gardiner v. Tisdale, 2 Wis. 153, 60 Am. Dec. 407 (1853). Our supreme court confirmed the impact of a recorded plat on the rights of lot owners when it explained:

[T]he recording of the plat and conveyance of lots by the owner with reference to the plat constitute [s] the granting of an easement to the purchasers of lots within the subdivision to ingress and egress over said private roadway in common with other lot owners, and the original proprietors and their grantees are estopped to deny the legal existence of such rights of ingress and egress.

Baurer v. Sokoloff, 254 Wis. 273, 276, 36 N.W.2d 61 (1949).

¶ 12. Here, Schimmels' portion of Lot 6 was conveyed with express reference to Peterson's Plat, which included the private road to the lakeshore. Noordover argues that the recorded plat does not "include any language related to access to Okauchee Lake." He further contends that the deeds conveying his interest in Lot 6 and Schimmels' interest in Lot 6 provide use of the private road for access to the highway but are silent as to access to Okauchee Lake. Noordover directs us to Yurmanovich v. Johnston, 19 Wis. 2d 494, 120 N.W.2d 707 (1963), to support his contention that silence on the issue of lake access demonstrates a lack of intent to provide lake access. In Yurmanovich, the recorded plat showed routes for common use by lot owners whose property did not front on the lake, giving them access to the beach. Id. at 500. Furthermore, deeds of conveyance expressly stated that grantees were to have access to the roads and to the beach. Id. at 500-01.

¶ 13. We agree with the conclusion in Yurmanov-ich that "[b]y recording the plat showing routes giving access to the lake for use in common by the lot owners and by conveying the lots with reference to the plat and again providing that the grantee shall have access to the lake constituted the granting of easements to appellants who are purchasers of these lots." Id. at 501. Although Peterson's Plat does not specifically reference lake access, the Plat clearly includes a private road that provides the only lake access available to several lot owners. A platted private road that provides lake access adds value to the lot by the convenience and advantage it promises; thus, the Plat "secure[s] to the grantee a right of way over such platted streets." See Chapin, 10 A. at 641. Furthermore, there is no indication in the Plat or otherwise that the private road shown is somehow removed from the common use once it becomes the artery now known as Tweeden Lane. Consequently, Noordover is "estopped to deny [Schimmels1] use in common with other [Peterson's Plat] lot owners." See Threedy, 131 F.2d at 490.

¶ 14. Noordover also contends that because he received permission from the Department of Natural Resources to install the retaining wall on Tweeden Lane, Schimmels, as a Plat lot owner, had no basis to object to the wall. Noordover's own testimony belies that contention:

What I was told by the DNR is that as long as I'm not adding more rocks to the frontage, I would not have to pull a permit.... The Catch 22, unfortunately, is since it's deeded as common land, all ten [Plat owner] signatures would have been required for even the permit application process [to add rocks to control shoreline erosion], (Emphasis added.)

¶ 15. The DNR is equipped to determine whether riparian statutory requirements are met and to allocate the rights of parties who are already determined to be riparian owners. Town of East Troy v. Flynn, 169 Wis. 2d 330, 336, 485 N.W.2d 415 (Ct. App. 1992). We are satisfied that the DNR's representation to Noordover that access to Okauchee Lake by way of Tweeden Lane was subject to the interests of all ten Plat owners was a correct reflection of the controlling law. We do not see, however, how this supports Noordover's position.

¶ 16. As a final matter, the circuit court's order presents an internal inconsistency that we must address. Conclusion No. 4, which holds that Schimmels has no right of ingress and egress to Okauchee Lake by way of Tweeden Lane, is then reframed in Conclusion No. 8 where the circuit court concluded that:

It is the law of the case that the plaintiff and defendant have the use of [Tweeden Lane] for ingress and egress to Okauchee Lake. This ingress and egress shall be limited to fishing and swimming. The subject roadway may not be used for the storage of items, parking of cars, launching boats or taking out things such as a pier or a boat lift.

We are baffled by the circuit court's conclusion, its spontaneous crafting of partial rights, and particularly by the court's reference to "the law of the case."

¶ 17. The law of the case doctrine has been defined as a "long-standing rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal." Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989). Our reading of the record and the appellate briefs discloses no support for, or explanation of, the application of the law of the case doctrine, particularly with regard to the circuit court's characterization of Schimmels' rights of ingress and egress as limited to fishing and swimming.

¶ 18. Schimmels raises two additional issues in his appeal. First, he asks whether the owners of the other Peterson's Plat lots are indispensable parties to this litigation. Second, he contends that the circuit court's order reflected the imposition of sanctions that were inappropriate. We need not reach these issues because our decision on Schimmels' primary issue makes further analysis unnecessary. See Clark v. Waupaca County Bd. of Adjustment, 186 Wis. 2d 300, 304, 519 N.W.2d 782 (Ct. App. 1994) ("if our decision on one issue disposes of an appeal, we need not review the other issues raised").

CONCLUSION

¶ 19. We conclude that the Plat, along with the deed referencing the Plat, grants Schimmels ingress and egress to Okauchee Lake by way of the private road now known as Tweeden Lane. The circuit court's order, specifically Conclusion No. 4, which states that "[t]he recorded Plat and recorded deeds do not afford [Schim-mels] the portion of said Private Road that lies between defendant's lot and Okauchee Lake (the 'Subject Roadway') ingress and egress to Okauchee Lake" is in error. The rule of law expressed in Threedy and Baurer controls the issue presented here. Any departure from the proposition that purchasers of lots within a recorded plat have a right to ingress and egress over the private roadway in common with other lot owners is unsupported. The circuit court cannot, by reference to the individual deeds or to the "law of the case," deprive lot owners of rights vested in them by the recorded plat. Therefore, the orders of the circuit court are reversed.

By the Court. — Orders reversed.

APPENDIX A

APPENDIX B

       We observe that the Plat recorded in 1913 does not use the name Tweeden Lane to identify this strip of land. On the Plat, the only term used to describe the access road, including what is now Tweeden Lane, is "Private Road." The 1913 Plat is reproduced in Appendix A. This reproduction is taken from evidence introduced at trial as Defendant's Exhibit 46, with minor modifications made to improve legibility for publication. An updated Plat of Survey, dated April 14, 2003, was introduced at trial as Plaintiffs Exhibit 21. This survey identifies Tweeden Lane. The 2003 Plat of Survey is reproduced in Appendix B, with minor modifications to enhance legibility for publication.

       Schimmels also removed the retaining wall from Tweeden Lane during the pendency of the lawsuit, and there is a separate damages issue that is not presented here as an appellate issue.

       Relevant excerpts are taken from various portions of the circuit court's decision.

       Conclusion of Law No. 4 now reads: "The recorded Plat and recorded deeds do not afford the plaintiff the portion of said Private Road that lies between defendant's lot and Okauchee Lake (the 'Subject Roadway') ingress and egress to Okauchee Lake." (Emphasis added.)

       The circuit court struck from the proposed Conclusions of Law Conclusion No. 5, which stated: "The grant of the right to use the Subject Roadway is ambiguous, warranting consideration of intrinsic evidence."