author: SHIRLEY S. ABRAHAMSON, C.J. PATIENCE D. ROGGENSACK, J.

text:
    Neil S. Hubbard, Plaintiff-Respondent-Petitioner, v. Shaun Messer, d/b/a Degree Systems, Defendant-Appellant.
    Supreme Court

      No. 02-1701-FT.

      Oral argument September 17, 2003.—

      Decided November 20, 2003.

    2003 WI 145
    (Also reported in 673 N.W.2d 676.)

      For the plaintiff-respondent-petitioner there were briefs by Erwin H. Steiner and Steiner & Wright, LLC, Eau Claire, and oral argument by Erwin H. Steiner.

    For the defendant-appellant there was a brief by Christopher R. Bloom, Joel L. Aberg and Weld, Riley, Prenn & Ricci, S.C., Eau Claire, and oral argument by Joel L. Aberg.

    An amicus curiae brief was filed by Timothy G. Costello, Timothy C. Kamin and Krukowski & Costello, S.C., Milwaukee, on behalf of Wisconsin Manufacturers & Commerce.
    An amicus curiae brief was filed by Raymond J. Pollen, Amy J. Doyle, Crivello, Carlson & Mentkowski, Milwaukee, on behalf of Wisconsin Municipal Mutual Insurance Company and Wisconsin Counties Association, John J. Prentice and Prentice & Phillips LLP, Milwaukee, on behalf of Wisconsin Counties Association.
    An amicus curiae brief was filed by Aaron N Hal-stead, Kathleen Meter Lounsbury and Shneidman, Hawks & Ehlke, S.C., Madison, on behalf of District Council 40, AFSCME, AFL-CIO and Carol Gonzales.
   SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. This is a review of a published decision of the court of appeals reversing a judgment of the Circuit Court for Eau Claire County, Paul J. Lenz, Judge. The circuit court granted summary judgment to Neil S. Hubbard, the employee, concluding that because certain wages were due and unpaid on the deadline set by Wis. Stat. § 109.03(1) (2001-02), Shaun Messer d/b/a Degree Systems, the employer, owed the employee a civil penalty (referred to in the statutes as increased wages) of 70% of the amount of wages due and unpaid pursuant to Wis. Stat. § 109.11(2), which governs wage claim actions.

¶ 2. The court of appeals reversed the judgment of the circuit court and remanded the matter to the circuit court with directions to enter summary judgment for the employer, dismissing the employee's claims with prejudice. The court of appeals concluded that Wis. Stat. § 109.11 (2) (b) imposes civil penalties not if wages are due and unpaid after the employer is delinquent for more than 31 days as provided in § 109.03(1), but rather if, at the time a circuit court action commences, the wages are due to an employee and remain unpaid. Thus, the court of appeals concluded that if an employer belatedly pays wages in full before commencement of a circuit court action, the employee does not have an action for civil penalties.

¶ 3. At issue in the present case is whether the phrase "wages due and unpaid" in Wis. Stat. § 109.11 (2)(b), the civil penalties provision, refers to wages due and unpaid by the statutory deadline for the payment of wages or to wages due and unpaid when a circuit court action commences.

¶ 4. For the reasons set forth, we hold that Wis. Stat. § 109.11 (2) (b) does not impose civil penalties when wages due an employee have been fully paid at the time a circuit court action is commenced.

¶ 5. The facts are not in dispute and are set forth in the decision of the court of appeals. It is sufficient for purposes of this review to note that in 1999 the employer failed to pay wages to the employee and the employee filed a complaint with the Department of Workforce Development (DWD). When the employer did not pay the amount computed by the DWD, the DWD referred the case to the district attorney. The district attorney and the employee's private counsel advised the employer that the employee would enforce his rights through a small claims court action. After additional delay, the employer issued two checks, the second one in July 2000, totaling $3,873.91 in satisfaction of the full amounts calculated by the DWD as owing to the employee. The employee cashed both checks and does not claim any wages have not been paid.

¶ 6. On September 14, 2001, the employee commenced a circuit court action seeking a 100% civil penalty under Wis. Stat. § 109.11(2)(b) of $3,873.91. The employer moved for summary judgment, arguing that all wages had been paid fourteen months prior to commencement of the action and that therefore the employee had no cause of action for the civil penalties as a matter of law. The circuit court granted summary judgment in favor of the employee, awarding civil penalties of 70% of the wages due and unpaid at the statutory deadline for the payment of wages. The court of appeals reversed the judgment, holding that civil penalties are available only if wages were unpaid at the commencement of a circuit court action. We granted review to resolve this question of law.

¶ 7. In reviewing a grant of summary judgment, an appellate court applies the standards set forth in Wis. Stat. § 802.08(2) in the same manner as the circuit court. Summary judgment is proper and will be upheld on review when no issues of material fact exist and only a question of law is presented.

¶ 8. The question of law presented in this summary judgment is the interpretation of Wis. Stat. § 109.11(2)(b): Does the statute refer to "wages due and unpaid" at the statutory deadline for payment of wages, or does the statute refer to "wages due and unpaid" at the time a circuit court action commences? This court determines questions of law independently of the circuit court and court of appeals, but benefiting from the analyses of these courts.

¶ 9. Our goal in interpreting a statute is to discern and give effect to the intent of the legislature. Statutory interpretation begins with the language of the statute. Each word should be looked at so as not to render any portion of the statute superfluous. But "courts must not look at a single, isolated sentence or portion of a sentence" instead of the relevant language of the entire statute. Furthermore, a statutory provision must be read in the context of the whole statute to avoid an unreasonable or absurd interpretation. Statutes relating to the same subject matter should be read together and harmonized when possible. A cardinal rule in interpreting statutes is to favor an interpretation that will fulfill the purpose of a statue over an interpretation that defeats the manifest objective of an act. Thus a court must ascertain the legislative intent from the language of the statute in relation to its context, history, scope, and objective intended to be accomplished, including the consequences of alternative interpretations.

¶ 10. We begin with the language of the statute. Wisconsin Stat. § 109.03(5) grants employees a right of action against employers for all unpaid wages due to the employee. Wisconsin Stat. § 109.11(2)(b) provides that in a wage claim action a circuit court may order the employer to pay to the employee "in addition to the amount of wages due and unpaid to an employee . .. increased wages of not more than 100% of the amount of those wages due and unpaid." Section 109.11(2)(b) reads in full as follows:

In a wage claim action that is commenced after the department has completed its investigation under s. 109.09(1) and its attempts to settle and compromise the wage claim under sub. (1), a circuit court may order the employer to pay to the employee, in, addition to the amount of wages due and unpaid to an employee and in addition to or in lieu of the criminal penalties specified in sub. (3), increased wages of not more than 100% of the amount of those wages due and unpaid.

Wis. Stat. § 109.11 (2)(b) (emphasis added).

¶ 11. Wisconsin Stat. § 109.11(2)(b) does not explicitly define the phrase "wages due and unpaid," nor does it state the time at which wages are to be determined as due and unpaid.

¶ 12. In seeking to fill this void, the employer forwards three textual arguments supporting his view that the phrase "wages due and unpaid" refers to wages due and unpaid when a circuit court action commences.

¶ 13. First, the employer argues that because Wis. Stat. § 109.11(2)(b) begins with the words "in a wage claim action," the legislature intended that the civil penalty apply only to the facts as they exist "in a wage claim action." When wages have been paid before a claim action is commenced, he argues, they are no longer due and unpaid in the wage claim action.

¶ 14. Second, the employer argues that if the legislature intended to make civil penalties available for all wages that were due at the time prescribed by chapter 109, it would not have included the word "unpaid" in Wis. Stat. § 109.11(2)(b). He argues that the use of the word "unpaid" in the phrase "wages due and unpaid" indicates that an action to assess civil penalties may commence only as to those wages that have not yet been paid, and that if the penalty provision covered all wages that were paid untimely, then the word "unpaid" would be made superfluous.

¶ 15. Third, Wis. Stat. § 109.11(2)(b) reads that a circuit court may order the employer to pay to the employee, "in addition to the amount of wages due and unpaid. . . increased wages of not more than 100% of the amount of wages due and unpaid." The employer argues that the words "in addition to" mean that only if an employee commences an action to collect wages that are due and unpaid may a circuit court award civil penalties against an employer. He argues that the words "in addition" mean that a circuit court must first award the unpaid wages to which an employee is entitled and then award, if the circuit court deems such penalty wages appropriate, an additional percentage (up to 100%) of the wages due and unpaid. Thus, he argues, the legislature did not create a cause of action for the civil penalties distinct and independent from the underlying cause of action for unpaid wages.

¶ 16. Although these arguments have merit, we conclude that the employer's interpretation does not necessarily rule out the possibility that the phrase "wages due and unpaid" means those wages due and unpaid as of the statutory deadline for payment of wages. The text of the statute does not literally say what the employer is arguing. If the legislature intended to deny employees access to the courts once the delinquent wages are fully paid, the legislature could have stated this intent more clearly and directly. To reach the employer's position, we would have to shuffle several clauses and make several inferences. We should not adopt the employer's interpretation without examining the context, the history, and the purposes of Wis. Stat. § 109.11(2)(b).

¶ 17. Moving beyond the textual arguments, the employer asks us next to place Wis. Stat. § 109.11(2)(b) in the context of § 109.01(4). Under Wis. Stat. § 109.01(4), a "wage deficiency" is defined as "the difference between the amount required by law to be paid and the amount actually paid to an employee." According to the employer, this statutory definition implies that there can be no "wage deficiency" if, at the time the action is commenced, there is no difference between the wages required to be paid and the wages actually paid. Yet § 109.11(2)(b) does not refer to "wage deficiency"; it refers only to wages due and unpaid. If the legislature had used the phrase "wage deficiency" in § 109.11(2)(b), our task might be simpler. It did not, however, and without further exploration of context, history, and purpose, we are unwilling to incorporate such meaning into the phrase we consider today.

¶ 18. In contrast, the employee asks us to read Wis. Stat. § 109.11(2)(b) in the context of Wis. Stat. § 109.03(5), which provides that each employee "shall" have a right of action against any employer for the full amount of the employee's wages due on each regular pay day "and for increased wages [civil penalties] as provided in s. 109.11(2)." The word "shall" is mandatory, and the employee urges that this statute guarantees employees a right to "increased wages" (the civil penalty) in a civil action as a separate cause of action from the underlying cause of action for wages. The employee urges that when the two statutes are read together, they mean that "wages due and unpaid" refer to wages due and unpaid as of the statutory deadline for payment of wages.

¶ 19. We are not fully persuaded by this interpretation. While we could read Wis. Stat. § 109.03(5) as creating a separate cause of action for increased wages (the civil penalty), it is equally possible that the legislature intended that an action for underlying wages and civil penalties be joined. We are unwilling to adopt the employee's interpretation without examining the history and the purposes of § 109.11(2)(b).

¶ 20. We look to the history of Wis. Stat. § 109.11 (2) (b) for guidance about the legislature's intent.

¶ 21. The legislature adopted Wis. Stat. § 109.11(2)(b) in 1993. Under the precursor to Wis. Stat. § 109.11(2), civil penalties were calculated on the basis of an employer's failure to pay wages when due under chapter 109. The statute calculated a civil penalty on a sliding scale depending on the number of days payment of wages was late, beginning one month after wages were due; the penalty was capped at $500.

¶ 22. In replacing the rigid, formulaic system based on the due date of the wages, the legislature omitted the reference to making the civil penalty begin immediately upon an employer's failure to pay the wages when due under chapter 109. Instead, the legislature granted circuit courts discretion to award civil penalties for "wages due and unpaid," without explicit reference to the date wages were initially due and payable under chapter 109.

¶ 23. Our review of the statutory history and evolution of § 109.11(2)(b) supports the argument that in the 1993 revision the legislature was moving away from making the civil penalty begin immediately upon an employer's failure to pay wages when due under chapter 109.

¶ 24. In testing the validity of this assertion, we look to the legislature's purpose in adopting the statute for additional guidance in interpreting § 109.11(2)(b). Our first step is to look beyond the narrow focus of § 109.11(2)(b) to the broader purpose of chapter 109 generally. Doing so leaves little doubt in our minds that the legislative objective of chapter 109 is to foster the prompt payment of wages due to Wisconsin employees. Chapter 109 "concerns the right of employees to receive their wages when due.... '[It] flows from a simple proposition: if workers are not paid their wages, they and their families will suffer.' "

¶ 25. Various provisions of chapter 109 protect employees through a plethora of administrative and court remedies for employees to settle disputes and collect their wages. The legislature enacted administrative, civil, and criminal penalties designed to encourage employers to pay wages in a timely manner.

¶ 26. While prompt payment of employees is a significant, and perhaps the most important, goal of the legislature, it is not the sole purpose of § 109.11 (2) (b). The 1993 changes to the statute demonstrate a commitment to promoting the resolution of wage disputes quickly, efficiently, and voluntarily with the assistance of the Department of Workforce Development (DWD). The statute recognizes that legitimate wage disputes often arise in the course of business and that such disputes may stem from innocent mistakes or miscalculations. The revised penalty of Wis. Stat. § 109.11(2)(b) in 1993 appears to give employers time to conduct self-audits in order to correct inevitable mistakes in complicated payroll systems and avoid any civil penalty. Just as employees should be paid wages promptly, employers and employees need to be made aware of such mistakes and be allowed to resolve wage disputes arising from them outside of the judicial system.

¶ 27. In order to accomplish this goal, the legislature entrusts the DWD with the responsibility to investigate claims, encourage employers to self-audit when necessary, and settle disputes without lengthy and financially prohibitive litigation. To encourage use of the DWD, Wis. Stat. § 109.11(2)(b) halves the available civil penalty if the DWD is bypassed and a claim is directly pursued in circuit court. The legislature's decision to create a significant disparity between the statutory penalties available depending on the DWD's involvement signals a strong legislative preference for administrative resolution of wage disputes and the concomitant objectives that underlie administrative law generally: expedient, economical, and specialized resolution of disputes.

¶ 28. From our inquiry into statutory history and purpose, we conclude that Wis. Stat. § 109.11(2)(b) is the culmination of two mutually reinforcing principles that the legislature sought to balance: encouraging the prompt payment of wages and encouraging use of the DWD to decrease the burden of costly litigation. We proceed by considering, in light of these principles, which of the two competing interpretations of § 109.11(2)(b) forwarded by the parties best promotes these legislative objectives.

¶ 29. The employee primarily relies on the principle that the legislature intended wages to be paid promptly and that the statute should be construed to maximize employers' rapid payment of wages. In order to achieve this end, the employee maintains that despite any settlement of the wage claim and payment in full, employees sustain a cause of action for civil penalties and attorney fees.

¶ 30. The employee's contention is that if civil penalties under Wis. Stat. § 109.11(2)(b) apply only to wages due when a circuit court action commences, then employers could fail or refuse to pay wages at the statutory deadline for the payment of wages. Payment could be prolonged for several years and employers could avoid civil penalties so long as they paid the overdue wages at least one day before a circuit court action commenced.

¶ 31. Moreover, the employee asserts that interpreting Wis. Stat. § 109.11(2)(b) to deny a cause of action for civil penalties to employers who receive a full settlement of all overdue wages forces financially distressed employees into a Hobson's choice: employees must either cash the check, get badly needed funds and lose the civil penalties under § 109.11(2)(b) or wait for the payment of wages and retain the possibility of civil penalties.

¶ 32. The employee argues that the employer's interpretation of Wis. Stat. § 109.11(2)(b) to encompass only wages due and unpaid at the commencement of a civil action does not account for the fact that employees have lost the use of the unpaid wages and have incurred the hardships that come from an inability to pay bills as they become due.

¶ 33. Although we agree that the employee's interpretation could ostensibly provide the maximum deterrent effect on unscrupulous employers who wrongfully withhold wages, we are concerned that if we interpret Wis. Stat. § 109.11(2)(b) as the employee proposes, we might unintentionally create an incentive for employers not to pay wages in a timely manner.

¶ 34. Specifically, under the employee's proposed interpretation, employers would have little incentive to settle wage claims promptly if they knew employees maintained a cause of action for civil penalties regardless of whether the underlying claims were fully settled. Thus employers might delay payment to employees on the theory that employers will be liable for statutory penalties regardless of whether they settle a wage claim promptly.

¶ 35. Furthermore, as one of the amici in this case points out, the employee's argument presupposes that employers could correctly predict the day on which employees would file suit so that employers could satisfy the claim before the initiation of an action. The fact that an employee is free to file an action at any time encourages the employer to pay promptly.

¶ 36. The employer further argues that the existing criminal penalties will provide a sufficient deterrent to discourage late payment of wages. Wisconsin Stat. § 109.11(3) provides criminal penalties for employers who fail to pay wages due and payable or who falsely deny the amount or validity of the wages with criminal intent, even though they may not be subject to civil penalties. Thus, the employer asserts that even without providing employees the ability to recover civil penalties when, at the time an action is commenced in circuit court, all wages have been paid, the criminal penalties are a significant incentive for employers to pay wages promptly because of the potential costs and stigma of criminal liability.

¶ 37. Criminal penalties may not, however, be a significant incentive for employers to pay wages promptly. Criminal intent may be hard to prove without a pattern of conduct on the part of the employer. Furthermore, criminal penalties do not assist employees by providing them with additional funds to compensate them for delays in payment of wages and expenses of seeking payment. The employee therefore contends that employers will be deterred from late payment of wages only when employees can recover civil penalties and the costs they incur in recovering wage payments from employers. According to the employer, however, this rationale is not persuasive because employees do not incur significant costs in filing an administrative complaint with the DWD and civil penalties make little sense when used to penalize employers before employees have had to bear the financial burden resulting from the commencement of litigation.

¶ 38. The employee responds by predicting that adoption of the employer's interpretation will undermine the goal of administrative settlement of disputes because it will encourage employees to sidestep the DWD and engage in a "race to the courthouse." He argues that if employees are barred from access to the court once overdue wages are paid, even if they are paid well after the deadline set by chapter 109, attorneys for employees are likely to file wage claim actions in circuit court immediately to avoid the loss of their clients' rights to recover the civil penalty under Wis. Stat. § 109.11(2)(b) and a reasonable sum for expenses under § 109.03(6).

¶ 39. We agree that under the employer's interpretation employees have the option of bypassing the DWD and going to the courts first in order to preserve the possibility of recovering civil penalties and expenses. In conceding this possibility, however, we do little more than recognize the language of § 109.11(2)(b) itself, which provides employees with an option of bypassing the administrative forum. The employer's interpretation will not necessarily result in a net increase in court traffic because the expense and potential delays in pursuing litigation and the uncertainty of a circuit court's willingness to exercise its discretion in granting civil penalties will encourage many employees to first utilize the DWD when pursuing wage claims.

¶ 40. Going to court is problematic. A circuit court ultimately has discretion to award few or no civil penalties or expenses. If the wage dispute was the result of an honest misunderstanding, a mistake, or a reasonable dispute, a circuit court might very well not award civil penalties or expenses to an employee who rushes into court and bypasses the alternative dispute resolution the legislature provided through the DWD. Avoidance of the DWD presents a precarious path for employees.

¶ 41. We recognize and are extremely concerned by the possibility that an employee may be placed in a difficult financial position as a result of an employer's refusal to pay wages in a timely fashion. However, as we have stated above, our concern must be tempered by the reality that employers should be able to rely on the agreed-upon settlement of wage disputes. Indeed, when an employee has already fully recovered wages through the administrative processes of the DWD we are less fearful that the employee will be placed in a financially vulnerable position.

¶ 42. After considering these arguments, we conclude that the interpretation that civil penalties are available only when wages are unpaid at the commencement of a circuit court action will hasten resolution of these disputes and, therefore, leave employees in a better position overall. While we appreciate that both the employer and the employee have proposed feasible interpretations of the statute, we are ultimately required to interpret the statute in a way that is consistent with the language, context, statutory history, and legislative goals underlying the statute. We are convinced that the interpretation forwarded by the employer and the court of appeals will more fully effectuate thé legislature's important goals of encouraging the rapid and final resolution of wage disputes outside the courts and in the DWD. In light of these goals, we are persuaded that in order for an employee to recover civil penalties, wages must remain due and unpaid at the time a wage claim action commences in circuit court. This interpretation best balances the legislature's goals by encouraging employers to pay wages promptly, facilitating the rapid administrative disposition of disputes, and bringing finality to settlements brokered by the parties on their own or in the administrative process.

¶ 43. Accordingly, we hold that Wis. Stat. § 109.11(2)(b) does not impose a civil penalty when wages due to an employee have been fully paid at the time a circuit court action is commenced.

By the Court. — The decision of the court of appeals is affirmed.

PATIENCE D. ROGGENSACK, J.

¶ 44. {concurring). I agree with the conclusions reached in the majority opinion. However, I write separately to point out that the majority opinion's statutory analysis of Wis. Stat. § 109.03(1) is a departure from that which has been this court's mode of statutory analysis and that it is not one that the court has discussed and decided to adopt.

¶ 45. Our jurisprudence has repeatedly explained that the interpretation of a statute is a question of law that we review de novo. State ex rel. Angela M.W. v. Kruzicki, 209 Wis. 2d 112, 121, 561 N.W.2d 729 (1997); Stockbridge Sch. Dist. v. DPI, 202 Wis. 2d 214, 219, 550 N.W.2d 96 (1996). Our goal in statutory interpretation is to ascertain and give effect to the legislature's intent. Angela M.W., 209 Wis. 2d at 121; Ball v. Dist. No. 4 Area Bd. of Vocational, Technical and Adult Educ., 117 Wis. 2d 529, 537-38, 345 N.W.2d 389 (1984). We begin our interpretation with the language the legislature has chosen to use in the statute. Angela M.W., 209 Wis. 2d at 121. We give that language its plain and ordinary meaning. Id. at 121; Bruno v. Milwaukee County, 2003 WI 28, ¶ 20, 260 Wis. 2d 633, 660 N.W.2d 656. If the language is clear on its face, we need go no further and we simply apply it. Bruno, 260 Wis. 2d 633, ¶ 20. As a general rule we do not review extrinsic sources unless there is an ambiguity in the statute. However, if the language is ambiguous, we consult the "scope, history, context, subject matter and object of the statute" in order to ascertain legislative intent. Ball, 117 Wis. 2d at 537-38. A statute is ambiguous if it is susceptible to two or more reasonable interpretations. Angela M.W., 209 Wis. 2d at 121.

¶ 46. The majority opinion employs the analytic framework for a statute that is ambiguous, while purposely not analyzing whether Wis. Stat. § 109.03(1) is ambiguous. This is a change in our traditional analysis, which is set out above. I offer no opinion about whether our mode of statutory analysis ought to be changed. However, when we change the statutory analysis in a majority opinion without explaining that the majority of the court has not decided to change its analysis, we lead our readers to conclude that we have changed. This can cause confusion among those we write to assist and make our opinions less useful to the public. Accordingly, I respectfully concur.

¶ 47. I am authorized to state that Justices JON E WILCOX and N. PATRICK CROOKS join this concurrence.

        Hubbard v. Messer, 2003 WI App 15, 259 Wis. 2d 654, 656 N.W.2d 475.

       Wisconsin Stat. § 109.03(1) provides:
      Every employer shall as often as monthly pay to every employee engaged in the employer's business, except those employees engaged in logging operations and farm labor, all wages earned by the employee to a day not more than 31 days prior to the date of payment.
      All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

        Hubbard, 259 Wis. 2d 654, ¶ 1.

        See Wis. Stat. § 109.11(l)(c).

        See Miller v. Thomack, 210 Wis. 2d 650, 659, 563 N.W.2d 891 (1997).

        See State v. Cole, 2003 WI 59, ¶ 12, 262 Wis. 2d 167, 663 N.W.2d 700.

        Id., ¶ 13 (citing State v. Szulczewski, 216 Wis. 2d 495, 504, 574 N.W.2d 660 (1999)).

        Landis v. Physicians Ins. Co., 2001 WI 86, ¶ 16, 245 Wis. 2d 1, 628 N.W.2d 893; Alberte v. Anew Health Care Servs., Inc., 2000 WI 7, ¶ 10, 232 Wis. 2d 587, 605 N.W.2d 515.

        Landis, 245 Wis. 2d 1, ¶ 16 (quoting Alberte, 232 Wis. 2d 587, ¶ 10).

        Cole, 262 Wis. 2d 167, ¶ 13 (citing State v. Leitner, 2002 WI 77, ¶ 30, 253 Wis. 2d 449, 646 N.W.2d 341).

        State v. Davis, 2001 WI 136, ¶ 13, 248 Wis. 2d 986, 637 N.W.2d 62.

        Cole, 262 Wis. 2d 167, ¶ 13 (citing State v. Davis, 2001 WI 136, ¶ 13, 248 Wis. 2d 986, 637 N.W.2d 62).

       The employee relies on the following language: "The wage claim law [chapter 109] requires employers to pay wages promptly. The law provides for, and encourages, enforcement by DWD, but it also grants employees a private right of action against any employer who does not promptly pay the full amount of wages due." German v. Wis. Dep't of Trans., 223 Wis. 2d 525, 529, 589 N.W.2d 651 (Ct. App. 1998).

       Wisconsin Stat. § 109.11(2) (1991-92) provided as follows:
      In addition to the criminal penalties provided in sub. (1), every employer violating this chapter shall he liable for the payment of the following increased wages: 10% if the delay does not exceed 3 days; 20% if the delay is more than 3 days, hut does not exceed 10 days; 30% if the delay is more than 10 days, but does not exceed 20 days; 40% if the delay is more than 20 days, but does not exceed 30 days; 50% if the delay is more than 30 days; but in no event shall such increased liability exceed $500.

        Jacobson v. Am. Tool Cos., Inc., 222 Wis. 2d 384, 400, 588 N.W.2d 67 (Ct. App. 1998) (quoting Pfister v. Milwaukee Econ. Dev. Corp., 216 Wis. 2d 243, 268, 576 N.W.2d 554 (Ct. App. 1998)).

        See, e.g., Wis. Stat. §§ 109.03(5) (employee lien); 109.03(6) (employee recovery of expenses); 109.09(2) (employee lien); 109.11(l)(b) (administrative penalty); 109.11(l)(c) (referral of wage claim to district attorney or Wisconsin Department of Justice); 109.11(2)(a) (civil penalties); 109.11(2)(b) (civil penalties); 109.11(3) (criminal penalties).

       The drafting record discussing the changes that were ultimately codified in § 109.11(2)(b) primarily focused on how the changes in the penalty provisions would ultimately expedite the administrative processes for resolving disputes by giving the agency authority to levy penalties against repeat offenders. Nevertheless, this discussion is instructive for our purposes in that it demonstrates the legislature's intent to give the agency teeth to resolve the majority of wage disputes and to encourage an employer who had erroneously underpaid an employee "to conduct a self-audit to correct similar wage payment problems involving other employees." See Drafting Record of 1993 Act 86, DILHR Reforms the Process: Working Smarter and Better in Labor Standards, at 1-2, available at Legislative Reference Bureau, Madison, WI.

       The employee also argues that the decision of the court of appeals in this case is in direct conflict with prior decisions of this court as well as the court of appeals. For this proposition, the employee cites two cases, American Federation of State, County and Municipal Employees Local 1901 v. Brown County, 146 Wis. 2d 728, 432 N.W.2d 571 (1988), and Kenosha Fire Fighters, Local Union No. 414 v. City of Kenosha, 168 Wis. 2d 658, 484 N.W.2d 152 (Ct. App. 1992), arguing that both of them stand for the principle that chapter 109 requires the imposition of civil penalties, regardless of the reason, for any delay greater than 31 days in paying retroactive wages and that an action can be commenced solely for the payment of back wages. We find these cases inapposite for two reasons. First, both cases predate the 1993 amendment to 109.11(2) that shifted away from mandatory imposition of penalty wages after the statutory deadline to pay wages expired. These cases, therefore, cannot stand for the proposition' that the phrase "wages due and unpaid" in the current statute means any delay greater than 31 days. Second, the cases cited by the employee do not directly address whether an action to recover penalty wages could be maintained after the wages were paid because in Kenosha Fire Fighters it was determined that wages were not due, see 168 Wis. 2d at 665, and in Employees Local 1901 the court determined that good cause justified the delay in payment and that the provisions of chapter 109 were not controlling of the facts in the case, see 146 Wis. 2d at 739.

       Brief of Amicus Curiae Wisconsin Manufacturers & Commerce at 14.

         See Employees Local 1901, 146 Wis. 2d at 735 ("The purpose of the ch. 109 penalties is to recover the costs incurred by the exnployee(s) in recovering the wage payments from the employer.").

       Wisconsin Stat. § 109.03(6) provides:
      In an action by an employee ... against the employer on a wage claim ... the court may allow the prevailing party, in addition to all other costs, a reasonable sum for expenses.

       The employee proposes a third possible interpretation of Wis. Stat. § 109.11(2)(b): The statutory phrase "wages due and unpaid" refers to wages unpaid when a circuit court enters judgment. This interpretation is least favored because it would not encourage the prompt payment of wages and would not eliminate the burden on an employee to engage in costly litigation. Such an interpretation would allow employers to delay until the very last moment to pay employees wages and would not reimburse employees for their inconveniences and difficulties in litigating wage claims.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Michael H. Grady, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Michael H. Grady, Respondent.
    Supreme Court

      No. 03-2159-D.

      Decided November 20, 2003.

    2003 WI 144
    (Also reported in 671 N.W.2d 649.)

      ATTORNEY disciplinary proceeding. Attorney's license suspended.

   PER CURIAM.

¶ 1. We review the stipulation filed by Attorney Michael H. Grady and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12, which sets forth findings of fact and conclusions of law regarding Attorney Grady's professional misconduct. The parties stipulated to a 90-day suspension of Attorney Grady's license to practice law. We accept the parties' stipulation and agree that a suspension of 90 days is appropriate discipline for Attorney Grady's misconduct.

¶ 2. Attorney Grady was admitted to practice in 1984. He has no previous disciplinary history.

¶ 3. According to the OLR complaint filed in this matter, as well as the terms of the stipulation, on June 3, 1997, Attorney Grady's state bar membership was suspended for failure to comply with mandatory Con-turning Legal Education (CLE) reporting requirements. Despite this suspension he continued to engage in the practice of law.

¶ 4. On March 11, 1999, a complaint was filed in Milwaukee County Circuit Court, signed by Attorney Grady as "Attorney for the Plaintiff." Counsel for the defense in that action learned that Attorney Grady's state bar membership was suspended and so advised the OLR.

¶ 5. On May 21, 1999, the OLR sent a letter to Attorney Grady asking him to account "for all other law practice activities in which you have engaged since June 3, 1997." Attorney Grady responded to that inquiry. He admitted filing the summons and complaint in the aforementioned case, but stated:

Since approximately 12/95 I have focused my efforts in the field of Mortgage Banking and Brokering. I was employed as a broker/loan originator/loan solicitor by Mortgage Concepts, Inc. Since 6/3/97, and actually well before then I have not done anything law wise except to receive payment on fees and bills owed for work done prior to 6/3/97.

In response to a follow-up inquiry from the OLR Attorney Grady indicated that he did not recall appearing, filing pleadings, having cases pending, serving as counsel of record, holding himself out as a lawyer, or handling any other legal matters since the date of his suspension.

¶ 6. However, Consolidated Court Automation Program (CCAP) records reflect that Attorney Grady's name appeared as counsel of record in 25 separate cases and that he entered appearances or filed pleadings in at least 20 matters during his suspension. Subsequently, Attorney Grady admitted that he acted as an attorney in some 15 of these matters.

¶ 7. On August 15, 2003, the OLR filed a complaint against Attorney Grady which charged that by continuing to represent clients, including appearing in court and filing pleadings while his state bar membership was suspended, Attorney Grady violated SCR 31.10G) and SCR 20:8.4(f).

¶ 8. In addition, the complaint alleged that by informing the OLR staff that he could only recall one case in which he appeared or filed pleadings after his state bar membership was suspended, and that he could not recall any pending cases at the time of his suspension, when in fact, he had entered appearances, filed pleadings, and appeared in court in at least 20 cases since his suspension, Attorney Grady engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).

¶ 9. On or about August 28, 2003, the OLR and Attorney Grady executed a stipulation pursuant to SCR 22.12. In addition to stipulating to the facts as set forth above, the parties stipulated to discipline in the form of a 90-day suspension of Attorney Grady's license to practice law in Wisconsin.

¶ 10. The stipulation provides that it is not the result of a plea bargain and reflects neither a reduction of the charges nor a reduction of the level of discipline originally sought by OLR. The OLR is not seeking imposition of costs in this matter. The memorandum submitted by the OLR in support of the stipulation cites In re Disciplinary Proceedings Against Winter, 196 Wis. 2d 686, 539 N.W.2d 451 (1995), a factually similar case in which a 90-day suspension was imposed.

¶ 11. We approve the stipulation and adopt the stipulated facts and conclusions of law set forth therein. We agree that Attorney Grady's misconduct warrants the suspension of his license to practice law, and we accept the parties' stipulation that a 90-day suspension is appropriate discipline in this matter. Therefore,

¶ 12. IT IS ORDERED that the license of Attorney Michael H. Grady to practice law in Wisconsin is suspended for a period of 90 days, effective the date of this order.

¶ 13. IT IS FURTHER ORDERED that Attorney Michael H. Grady comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

       SCR 22.12 provides: Stipulation.
      (1) The director may file with the complaint a stipulation of the director and the respondent to the facts, conclusions of law regarding misconduct, and discipline to be imposed. The supreme court may consider the complaint and stipulation without the appointment of a referee.
      (2) If the supreme court approves a stipulation, it shall adopt the stipulated facts and conclusions of law and impose the stipulated discipline.
      (3) If the supreme court rejects the stipulation, a referee shall he appointed and the matter shall proceed as a complaint filed without a stipulation.
      (4) A stipulation rejected by the supreme court has no evidentiary value and is without prejudice to the respondent's defense of the proceeding or the prosecution of the complaint.

       SCR 31.10(1) provides:
      (1) If a lawyer fails to comply with the attendance requirement of SCR 31.02, fails to comply with the reporting requirement of SCR 31.03(1), or fails to pay the late fee under SCR 31.03(2), the board shall serve a notice of noncompliance on the lawyer. This notice shall advise the lawyer that the state bar membership of the lawyer shall be automatically suspended for failing to file evidence of compliance or to pay the late fee within 60 days after service of the notice. The board shall certify the names of all lawyers so suspended under this rule to the clerk of the supreme court and to each judge of a court of record in this state. A lawyer shall not engage in the practice of law in Wisconsin while his or her state bar membership is suspended under this rule.

       SCR 20:8.4(f) provides: "It is professional misconduct for a lawyer to: (f) violate a statute, supreme court rule, supreme court order or supreme court decision regulating the conduct of lawyers."

       SCR 20:8.4(c) provides: "It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation."


author: DIANE S. SYKES, J.

text:
    Mark Anderson and Janet Anderson, his wife, Plaintiffs-Appellants, v. American Family Mutual Insurance Company, Defendant-Respondent, Mary Anne Brasure, Defendant-Respondent-Petitioner, Gregory L. Brasure, Defendant-Respondent.
    Supreme Court

      No. 02-0980.

      Oral argument September 16, 2003.—

      Decided November 25, 2003.

    2003 WI 148
    (Also reported in 671 N.W.2d 651.)

      For the defendant-respondent-petitioner there were briefs by Mark A. Pennow, TinaM. Dahle and Denissen, Kranzush, Mahoney & Ewald, S.C., Green Bay, and oral argument by Mark A. Pennow.

    For the plaintiffs-appellants there was a brief by Frank W. Kowalkowski and Hanaway, Weidner, Bach-huber, Woodward & Maloney, S.C., Green Bay, and oral argument by Frank W. Kowalkowski.

    An amicus curiae brief was filed by Edward E. Robinson and Cannon & Dunphy, S.C., Brookfield, on behalf of The Wisconsin Academy of Trial Lawyers.
   DIANE S. SYKES, J.

¶ 1. In Wisconsin, persons who furnish alcohol beverages to others are statutorily immune from civil liability arising out of the act of furnishing the alcohol. See Wis. Stat. § 125.035(2) (1999-2000). This immunity is subject to an exception: if the provider knew or should have known that the person to whom he was providing the alcohol was under the legal drinking age and the alcohol provided to the underage person is a substantial factor in causing injury to a third party, there is no immunity. Wis. Stat. § 125.035(4).

¶ 2. The issue in this case is whether an underage drinker who is injured as a result of the consumption of alcohol that was provided to a companion underage drinker is an injured "third party" under the exception to immunity. We hold that he is.

¶ 3. The defendant, Mary Anne Brasure, provided a bottle of vodka to her 19-year-old son, Gregory, who took the vodka to the family's vacation home where he and two friends drank it. One of the friends, Craig Anderson, died of acute alcohol intoxication. Craig's parents sued Mary Anne Brasure.

¶ 4. The circuit court applied the statutory immunity and dismissed the case on summary judgment. The court of appeals reversed, concluding that Craig was an injured third party within the meaning of the exception to immunity for injuries to third parties arising out of the provision of alcohol to underage persons. Anderson v. Am. Family Mut. Ins. Co., 2002 WI App 315, ¶ 1, 259 Wis. 2d 413, 655 N.W.2d 531.

¶ 5. We affirm. Craig Anderson was a third party to the illegal provision of alcohol by Mary Anne Brasure to her underage son, Gregory. While Craig Anderson's consumption of the alcohol may well affect the factfinder's evaluation of his contributory negligence, it does not alter his status as a third party to the original illegal transaction between Mary Anne Brasure and her son for purposes of the statutory exception to immunity.

I. FACTS AND PROCEDURAL HISTORY

¶ 6. This is an appeal from an order of summary judgment. Therefore, we take the following facts from the pleadings and materials submitted on the-motion in the circuit court. On or about March 19, 1999, Mary Anne Brasure ("Mary Anne") purchased a 1.75 liter bottle of vodka for her son Gregory, who was then 19 years old, and left it on her kitchen table with a note that said, "Greg, you owe me $12.00." Gregory took the vodka to the family's vacation property in rural Mari-nette County, where he and two friends, Craig Anderson and Robert Tripp, drank it. Late that night or early the next morning, Craig died of acute alcohol intoxication, having consumed enough alcohol to put his blood alcohol concentration at between .357 percent and .402 percent.

¶ 7. Craig's parents, Mark and Janet Anderson, brought a claim in Marinette County Circuit Court for Craig's wrongful death, naming Mary Anne, Gregory, and the Brasures' insurer, American Family Mutual Insurance Company ("American Family") as defendants. Mary Anne and Gregory moved for summary judgment on the basis of the immunity statute, Wis. Stat. § 125.035(2). American Family moved for summary judgment on the basis of exclusions in its homeowner's policy. The Honorable Tim A. Duket granted summary judgment in favor of Mary Anne and Gregory, concluding that they were immune under the statute, and also granted American Family's motion in part, finding no coverage under the insurance policy for the claim against Gregory but concluding that material issues of fact existed as to coverage for the claim against Mary Anne.

¶ 8. The court of appeals affirmed the circuit court as to the insurance coverage issue and Gregory's immunity, but reversed as to Mary Anne's immunity. Anderson, 259 Wis. 2d 413, ¶ 1. The court held that because Craig was a third party to the transaction whereby Mary Anne provided alcohol to Gregory, and because the alcohol Mary Anne provided to Gregory was a substantial factor in causing Craig's death, Mary Anne is subject to suit under the exception to immunity contained in Wis. Stat. § 125.035(4)(b). Anderson, 259 Wis. 2d 413, ¶ 12. We granted review, and now affirm.

II. STANDARDS OF REVIEW

¶ 9. In reviewing a grant of summary judgment, we employ the same methodology used by the circuit court. Stelpflug v. Town of Waukesha, 2000 WI 81, ¶ 17, 236 Wis. 2d 275, 612 N.W.2d 700. Summary judgment is appropriate when there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). The resolution of this case also requires the interpretation of Wis. Stat. § 125.035 in the context of undisputed facts. A question of statutory interpretation is a question of law that we review de novo. Czapinski v. St. Francis Hosp., Inc., 2000 WI 80, ¶ 12, 236 Wis. 2d 316, 613 N.W.2d 120.

III. DISCUSSION

¶ 10. The Andersons' suit against Mary Anne is predicated on Craig being an injured third party under the exception to immunity contained in Wis. Stat. § 125.035(4)(b). The immunity statute states the general rule of immunity as follows: "A person is immune from civil liability arising out of the act of procuring alcohol beverages for or selling, dispensing or giving away alcohol beverages to another person." Wis. Stat. § 125.035(2). The note that Mary Anne affixed to the bottle of vodka establishes that she procured alcohol for Gregory. This fact, which is undisputed, is sufficient to trigger the general grant of immunity from civil liability under Wis. Stat. § 125.035(2).

¶ 11. Mary Anne loses this immunity, however, if the exception contained in Wis. Stat. § 125.035(4) applies. The exception is comprised of two subsections. The first sets limits on who may be covered by the exception; the second sets forth the substantive conditions necessary for satisfying the exception. The first subsection states:

In this subsection, "provider" means a person, including a licensee or permittee, who procures alcohol beverages for or sells, dispenses or gives away alcohol beverages to an underage person in violation of s. 125.07(l)(a).

Wis. Stat. § 125.035(4)(a).

¶ 12. Mary Anne's status as a "provider" under this definition depends upon whether her provision of alcohol to Gregory was in violation of Wis. Stat. § 125.07(l)(a). That statute states that "[n]o person may procure for, sell, dispense or give away any alcohol beverages to any underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age." Wis. Stat. § 125.07(l)(a). Applying this statute to the undisputed facts here, it is clear that Mary Anne is a "provider" for purposes of the exception to immunity under Wis. Stat. § 125.035(4)(a), because she gave her underage son Gregory a bottle of vodka while he was unaccompanied by a parent, in violation of Wis. Stat. § 125.07(l)(a).

¶ 13. The substantive subsection of the immunity exception provides, in relevant part:

Subsection (2) [the grant of immunity] does not apply if the provider knew or should have known that the underage person was under the legal drinking age and if the alcohol beverages provided to the underage person were a substantial factor in causing injury to a 3rd party.

Wis. Stat. § 125.035(4)(b). Mary Anne knew her son Gregory was under the legal drinking age. She argues that Craig is not a third party under Wis. Stat. § 125.035(4)(b).

¶ 14. Mary Anne contends that because Craig consumed the vodka that ultimately killed him, he himself is a "provider" under the terms of the statute and therefore cannot also be a third party. Mary Anne reasons that Craig is a "provider" because he "procured" the vodka from Gregory before drinking it; in other words, he "provided" the vodka to himself by drinking it with Gregory. This use of the term "provider" is illogical and runs contrary to the use of the term in the statute.

¶ 15. The general focus of the statute — both the immunity grant and the exception — is on the provision of alcohol beverages by one person to another, and whether the one who does the providing can be held liable for any injuries that may flow from that act. Meier v. Champ's Sport Bar & Grill, Inc., 2001 WI 20, ¶ 24 n.10, 241 Wis. 2d 605, 623 N.W.2d 94. The statute itself is not concerned with a person's own contributory liability for providing alcohol to himself, although the injured person's contributory fault may bear upon a defendant's ultimate liability.

¶ 16. The status of the injured person as a third party to the provider's act of furnishing the alcohol comes into play in determining the applicability of the exception to immunity. The exception defines "provider" as one who "procures alcohol beverages for... an underage person in violation of s. 125.07(l)(a)," and proceeds to eliminate the provider's immunity where the provision of alcohol to the underage person causes injury to a third party. Wis. Stat. § 125.035(4)(a), (b). If the injured claimant is a third party to the transaction by which the defendant provided alcohol to an underage person, and the alcohol was a substantial factor in causing the third-party claimant's injury, then the exception to immunity applies and the defendant may be liable to the claimant.

¶ 17. Therefore, the applicability of the immunity exception to Mary Anne's potential liability to the Andersons for Craig's wrongful death depends upon whether Craig was a third party to the transaction by which Mary Anne provided alcohol to Gregory. Whether Gregory was secondarily a "provider" to Craig or Craig "provided" to himself by drinking with Gregory is not relevant. That Craig may be considered a first party to a subsidiary transaction between himself and Gregory (because they consumed the alcohol together) does not make him a party to the transaction by which Mary Anne provided the alcohol to Gregory.

¶ 18. By its terms, then, the exception to immunity under Wis. Stat. § 125.035(4)(b) applies when: 1) the injured person is a third party to the provider's act of furnishing alcohol to an underage person when the provider knew or should have known the person was underage; and 2) the alcohol was a substantial factor in causing the third party's injury.

¶ 19. Here, it is undisputed that Mary Anne provided the vodka to Gregory and that Gregory later shared it with Craig. No one has identified any fact tending to show that Craig was present at the time of Mary Anne's provision of alcohol to Gregory. No one has asserted that Craig contributed money to the purchase of the vodka. See Miller v. Thomack, 210 Wis. 2d 650, 656-57, 563 N.W.2d 891 (1997) (holding that one who contributes money toward purchase of alcohol beverages for consumption by a person known to be underage, "procures" within the meaning of Wis. Stat. § 125.035(4)). No one has pointed to facts suggesting that Craig asked his friend Gregory to get vodka from his mother or otherwise participated in any way in Mary Anne's provision of the alcohol to Gregory. In short, nothing in the record suggests that Craig had any role whatsoever in Mary Anne's provision of alcohol to Gregory. We conclude that Craig is a third party with respect to that transaction.

¶ 20. It is also undisputed that the alcohol was a substantial factor in causing Craig's death. Therefore, the exception to immunity under Wis. Stat. § 125.035(4)(b) applies.

¶ 21. This interpretation of Wis. Stat. § 125.035(4) is consistent with our prior cases applying the exception to immunity. In Meier, 241 Wis. 2d 605, ¶ 2, we held that a person who provides alcohol to an underage drinker cannot claim third-party status for purposes of the exception to immunity when he himself is injured by the actions of the intoxicated underage drinker. Id. Meier, 19, spent an evening drinking beer at a bar with two companions, one of whom was also 19. Meier ordered and paid for a number of the drinks shared by the trio of drinkers. After leaving the bar in a car driven by the other 19-year-old, the group was involved in a car accident in which Meier was seriously injured. Id., ¶¶ 3-8.

¶ 22. Meier sued the bar and the driver. We held that since Meier had paid for and otherwise procured alcohol for his companion, the underage drinker/driver, which was a substantial factor in causing his own injury, he was a party to the transaction that provided the alcohol to the underage person and thus did not qualify as a third party under the statute. Id., ¶ 13. We held in Meier: "It is difficult to imagine a class of individuals that the legislature would have more likely intended to exclude from qualifying as a 'third party' than those persons involved in procuring alcohol for the underage drinker who ultimately injures another party." Id.

¶ 23. The only similarity between Craig and the injured plaintiff in Meier is that both young men consumed alcohol prior to their injuries. But there is a key difference: Meier procured alcohol for the underage drinker who later caused his (Meier's) injury; in contrast, here, Craig did not procure alcohol for Gregory. As we stated in Meier, "[t]he transactional focus of § 125.035(4)(b) is the provision of alcohol to underage persons." Id., ¶ 24. It was because Meier was involved in the illegal transaction by which alcohol was provided to his underage friend, not because they consumed alcohol together, that he was precluded from suing under the exception as an injured third party.

¶ 24. Alcohol immunity issues may well arise most often in cases of accidents caused by intoxication, but neither intoxication nor a resultant accident is statutorily necessary for the exception to immunity to apply. The statute requires only the knowing provision of alcohol to an underage person, and an injury to a third party caused by the alcohol. The statútory language does not limit the exception to certain types of injuries. The fact that Craig died as a result of alcohol consumption does not itself take this case outside of the exception to immunity.

¶ 25. In addition, Craig's status as a companion underage drinker does not dictate whether he qualifies as an injured third party under Wis. Stat. § 125.035(4)(b). The statute does not limit third-party status by age, condition of sobriety, or separation of circumstance from the alcohol consumption. It requires only that the injured person be a third party to the defendant/provider's provision of alcohol to an underage person, and that the alcohol so provided is a substantial factor in causing the injury. Craig's age and complicity in his own intoxication are factors for the comparison of negligence, but they do not determine the applicability of the exception to immunity under Wis. Stat. § 125.035(4)(b).

¶ 26. Mary Anne argues that Kwiatkowski v. Capitol Indemnity Corp., 157 Wis. 2d 768, 461 N.W.2d 150 (Ct. App. 1990), unequivocally rules out those who consume alcohol from third-party status. In Kwiat-kowski, the court of appeals affirmed the circuit court's dismissal of a lawsuit alleging negligence in providing alcohol to an underage person. Kwiatkowski, 157 Wis. 2d at 771. Raymond Kwiatkowski, an "obviously intoxicated underage drinker," was served alcohol by the Red Lion Entertainment Center in Okauchee, Wisconsin. His companion, Amy Pederson, also bought him alcohol while they were at the tavern. Kwiatkowski and Peder-son left the Red Lion in an automobile with Kwiat-kowski at the wheel; an accident took place in which Kwiatkowski and Pederson were injured. Id.

¶ 27. Kwiatkowski sued the Red Lion, its owner, and Pederson. The court of appeals-framed the issue as "whether the statute contemplates a cause of action to a minor consumer of alcohol beverages where a third party [there, Pederson] is injured or whether the cause of action is limited to only the injured third party." Id. at 775. The court examined the statute and concluded that it was ambiguous because it "does not expressly grant a cause of action to either category of claimants," but merely "set[s] out when the immunity applies and when it does not." Id.

¶ 28. The court in Kwiatkowski then turned to the history of the statute and concluded that the statute was in derogation of the common law because it was enacted after two decisions of this court that altered the common law of immunity by permitting a cause of action against providers of alcohol who serve alcohol to minors where the minor's consumption was a cause of injury to a third party. Id. at 776-77. The court of appeals held:

The legislature in sec. 125.035(4)(b), Stats., has not sanctioned by clear, unambiguous and peremptory language a cause of action against a provider by a minor plaintiff whose injuries, at least in part, result from his own consumption of alcohol beverages. Absent such an unequivocal statement from the legislature or a further limitation of common law immunity by the supreme court, the present common law rule of nonliability still applies in such a case.

Id. at 777.

¶ 29. Mary Anne asserts that Kwiatkowski is clear and controlling precedent, and therefore Craig, a consumer of alcohol, cannot be a third party for purposes of the exception to immunity. Mary Anne's reliance on Kwiatkowski is misplaced. The premise upon which it relied — that the statute is in derogation of the common law — was subsequently rejected by our decision in Meier.

¶ 30. In Meier, we recapitulated the history of the enactment of Wis. Stat. § 125.035, and, in particular, the statute's relationship to this court's decisions in Sorensen v. Jarvis, 119 Wis. 2d 627, 350 N.W.2d 108 (1984), and Koback v. Crook, 123 Wis. 2d 259, 366 N.W.2d 857 (1985). Meier, 241 Wis. 2d 605, ¶¶ 30-35. For decades, Wisconsin common law recognized no liability on the part of sellers of alcohol for damages arising from the acts of an intoxicated person. See, e.g., Farmers Mut. Auto. Ins. Co. v. Gast, 17 Wis. 2d 344, 117 N.W.2d 347 (1962). In Sorensen, 119 Wis. 2d at 629, however, we held that a third party injured by an intoxicated minor could sue a provider who negligently sold intoxicating beverages to a person the seller knew or should have known was underage when the consumption of alcohol was a cause of the accident. In the following term we extended the Sorensen rule to social hosts who serve alcohol to minors where the minor's consumption was a cause of injury to a third party. See Koback, 123 Wis. 2d at 275.

¶ 31. The legislature responded to Sorensen and Koback by enacting statutory immunity from liability arising from the provision of alcohol beverages, Wis. Stat. § 125.035(2), effectively codifying the old common-law rule. Meier, 241 Wis. 2d 605, ¶ 33. At the same time, the legislature adopted the exception to immunity contained in subsection (4)(b), which permits a cause of action in situations like those present in Sorensen and Koback. Id., ¶ 34. Thus, we said in Meier:

[b]ecause the legislature drafted § 125.035 with So-rensen and Koback in mind and because the statute tracks the language of the case law, we conclude that the statute is not one in derogation of the common law, but indeed is one that attempted to codify the common law as it existed in 1985.

Id.

¶ 32. Although this passage from Meier is enough to rebut Mary Anne's reliance on Kwiatkowski, a footnote to our decision in Meier forecloses her argument definitively. We recognized in Meier that our interpretation ran contrary to conflicting court of appeals' discussions, in Kwiatkowksi, 157 Wis.. 2d at 776-77, and Miller, 204 Wis. 2d at 263, regarding the immunity statute's relationship to the common law. Meier, 241 Wis. 2d 605, ¶ 34 n.16. Therefore, to avoid any possible confusion on the issue, we specifically held: "To the extent that the court of appeals discussions [regarding statutes in derogation of the common law] in Miller and Kwiatkowski are inconsistent with this opinion, such discussions are no longer valid precedent." Id.

¶ 33. Although Kwiatkowski's interpretation of the immunity statute's relationship to the common law was erroneous, the result in the case would have been the same under our interpretation of the statute in Meier and here. The facts in Kwiatkowski were significantly different from the facts in this case. Craig, like Kwiatkowski, consumed the alcohol that was a substantial factor in causing his injury. Kwiatkowski, however, could not claim third-party status to the transaction by which the alcohol was provided, because his suit was against the tavern which had provided alcohol directly to him and his companion, Pederson. Kwiatkowski, 157 Wis. 2d at 771. Here, the Andersons are suing Mary Anne, who provided alcohol directly to her son Gregory, but not to Craig; the Andersons' son Craig was a third party to Mary Anne's provision of alcohol to Gregory.

¶ 34. We have previously observed that the exception to immunity is intended to discourage the knowing provision of alcohol to underage persons by making providers liable for third-party injuries. Meier, 241 Wis. 2d 605, ¶ 27; Miller, 210 Wis. 2d at 668-69. A provider has a defense to the applicability of the exception if he or she was actively misled about the recipient's age. The statute restores immunity if the facts establish all of the following:

1. The underage person falsely represents that he or she has attained the legal drinking age.
2. The underage person supports the representation with documentation that he or she has attained the legal drinking age.
3. The alcohol beverages are provided in good faith reliance on the underage person's representation that he or she has attained the legal drinking age.
4. The appearance of the underage person is such that an ordinary and prudent person would believe that he or she had attained the legal drinking age.

Wis. Stat. § 125.035(4)(b)l.-4.

¶ 35. This defense to the immunity exception further demonstrates that the focus of the statute is on the transaction between the provider and the underage person. By restoring the provider's statutory immunity where the facts establish deception by the underage person, the legislature has opted to permit civil liability to injured third parties only where the provider knew or should have known that he or she was directly violating the state drinking law. Such is the case here.

¶ 36. Accordingly, we conclude that an underage drinker who is injured or dies as a result of the consumption of alcohol that was illegally provided to a companion underage drinker is an injured third party for purposes of the exception to immunity under Wis. Stat. § 125.035(4)(b). The exception applies under these circumstances, and the Andersons may proceed with their suit against Mary Anne for the death of their son, Craig, arising out of Mary Anne's provision of alcohol to her underage son, Gregory. While Craig's own consumption will bear upon his contributory negligence, it does not affect his status as a third party to Mary Anne's provision of alcohol to Gregory for purposes of the statutory exception to immunity.

By the Court. — The decision of the court of appeals is affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The circuit court's summary judgment orders in favor of Gregory and American Family are not before this court.

       In Miller v. Thomack, 210 Wis. 2d 650, 660 n.11, 563 N.W.2d 891 (1997), we specifically declined to address the issue presented here — whether an underage consumer of alcohol can be a third party for purposes of the immunity exception in Wis. Stat. § 125.035(4) (b) — as it was not fully argued by the parties. In Miller we held only that one "who contributes money with the intent of bringing about the purchase of alcohol beverages for consumption by an underage person whom the person knows, or should know, is under the legal drinking age, procures alcohol beverages for the underage person within the meaning of Wis. Stat. §§ 125.07(l)(a)l. and 125.035(4)." Id. at 656.

       Although the Andersons' complaint alleged that Mary Anne Brasure purchased the alcohol and provided it "to Gregory Brasure and/or Craig E Anderson," the parties have not asserted that material factual disputes exist on the issue of Craig's involvement in Mary Anne's provision of alcohol to her son Greg, thus conceding Craig's nonparticipation in that act. See Anderson v. Am. Family Mut. Ins. Co., 2002 WI App 31, ¶ 12 n.8, 259 Wis. 2d 413, 422, 655 N.W.2d 531.

       Mary Anne cites Doering v. WEA Insurance Group, 193 Wis. 2d 118, 142-43, 532 N.W.2d 432 (1995), for the proposition that Wis. Stat. § 125.035 disallows a suit by ail underage drinker. Doering is not applicable here. The case involved a claim against a tavern by a motorist who was injured by an adult intoxicated driver who had been drinking at the tavern. The injured motorist lodged an unsuccessful equal protection challenge to the immunity statute. Doering specifically addressed the "single issue" of "whether sec. 125.035, Stats. 1991-92, violates the equal protection clause...." Id. at 124. The case did not address the issue of whether an underage drinker can be a third party for purposes of the exception to immunity under Wis. Stat. § 125.035(4)(b).

        Koback v. Crook, 123 Wis. 2d 259, 366 N.W.2d 857 (1985); Sorensen v. Jarvis, 119 Wis. 2d 627, 350 N.W.2d 108 (1984).


author: PATIENCE D. ROGGENSACK, J.

text:
    R. Scott McCormick, Robert L. McCormick and Shane McCormick, Plaintiffs-Respondents, v. Richard A. Schubring, Defendant-Appellant.
    Supreme Court

      No. 02-1004.

      Oral argument September 11, 2003.—

      Decided November 26, 2003.

    (On certification from the court of appeals.)
    2003 WI 149
    (Also reported in 672 N.W.2d 63.)

      For the defendant-appellant there were briefs (in the court of appeals) by John H. Priebe and Priebe Law Offices, Rhinelander, and John J. Hogan and Hogan & Melms LLP, Rhinelander, and oral argument by John J. Hogan.

    For the plaintiffs-respondents there was a brief (in the court of appeals) by John B. Rhode and Sommer, Oik, Schroeder & Payant, Antigo, and oral argument by John B. Rhode.

   PATIENCE D. ROGGENSACK, J.

¶ 1. Richard A. Schubring appeals a Langlade County Circuit Court judgment that granted R. Scott McCormick, Robert McCormick and Shane McCormick (the "McCormicks") an easement of necessity across Schubring's land. This case is before us on certification of two questions:

(1) Whether, when the elements required for an easement of necessity are established, the easement arises by operation of law or whether its creation is subject to the discretion of the circuit court; and
(2) Whether an easement of necessity may be afforded to a grantor of real estate who formerly had access to a public way, but after the severance of a portion of his property retains a landlocked parcel.

We also answer a third question: If the easement is a matter of discretion, whether the circuit court erroneously exercised its discretion when it granted the Mc-Cormicks an easement of necessity.

¶ 2. We conclude that an easement of necessity generally does not arise as a matter of law, but rather, through the exercise of a circuit court's discretion. We also conclude that one who stands in the shoes of a grantor who formerly had access to a public highway but after the severance of a portion of his land retained a landlocked parcel, may obtain an easement of necessity. And finally, the circuit court did not erroneously exercise its discretion in granting the McCormicks the easement. Accordingly, we affirm the judgment.

I. BACKGROUND

¶ 3. At one time, Merritt Oik owned three contiguous 40-acre parcels of undeveloped land in Lang-lade County. In 1946, Langlade County took the eastern most 40-acre parcel by tax deed. As the 40 acres the county took provided the only highway access, Oik's remaining 80 acres became landlocked. However, a dirt and gravel road cuts diagonally through the 40-acre parcel and connects the landlocked parcel to a public road. Oik used this road for access to the 80-acre parcel both before and after it became landlocked.

¶ 4. In 1955, George Gresch purchased the 40-acre parcel from the county, and in 1983, he sold it to Richard Schubring. Prior to his purchase, Schubring did not see the dirt road. He inquired "by word of mouth" and tried, unsuccessfully, to find public records relating to the property. He concluded that the 40-acre parcel was not subject to an easement.

¶ 5. In 1996, the McCormicks purchased the remaining 80 acres from the testamentary beneficiaries of Oik. The McCormicks use the property for hunting. Prior to purchase, they were aware of and had used the dirt road across Schubring's property for ingress and egress. After purchase, with Schubring's permission, the McCormicks used the road to remove timber from their land. Schubring requested that they leave the road in as good a condition as they found it. The McCormicks did so, spending $2,000 to $3,000 to make repairs and improvements to the road.

¶ 6. Schubring's property is presently maintained under a Wisconsin managed forest program that requires public foot access across the entire parcel, including the dirt and gravel road. See Wis. Stat. § 77.83(2)(a) (2001-02). Although the McCormicks initially used the road for vehicle access, Schubring now has prevented them from doing so, and when Schubring decides to remove his land from the forest management program, foot access could be extinguished as well. The McCormicks tried to negotiate the purchase of an easement from Schubring, but were unsuccessful. They then filed this lawsuit, wherein the circuit court granted them an easement of necessity; Schubring appealed and the court of appeals certified the above-referenced questions to us.

II. DISCUSSION

A. Standard of Review

¶ 7. Whether an easement of necessity arises as a matter of law or may be left to the discretion of the circuit court, and whether one who is landlocked but stands in the shoes of a grantor may obtain an easement of necessity are questions of law that we decide de novo. See State v. Byrge, 2000 WI 101, ¶ 32, 237 Wis. 2d 197, 614 N.W.2d 477. We review a circuit court's exercise of discretion to determine whether the exercise was erroneous. City of Brookfield v. Milwaukee Metro. Sewerage Dist., 171 Wis. 2d 400, 423, 491 N.W.2d 484 (1992).

B. Easement of Necessity Principles

¶ 8. An easement is an interest that encumbers the land of another. See Ludke v. Egan, 87 Wis. 2d 221, 227, 274 N.W.2d 641 (1979). It is a "liberty, privilege, or advantage in lands, without profit, and existing distinct from the ownership of the land." Schwab v. Timmons, 224 Wis. 2d 27, 35-36, 589 N.W.2d 1 (1999) (citation omitted). The creation of an easement gives rise to two distinct property interests: the dominant estate, that has the right to use the land of another, and the servient estate, that permits the exercise of that use. Id. at 36.

¶ 9. Easements may be provided by express grant of the owner of the servient estate or through court action when there is a dispute about the rights of each party. See Baurer v. Sokoloff, 254 Wis. 273, 276, 36 N.W.2d 61 (1949). An easement of necessity, the type of easement at issue here, is often sought when an owner of landlocked property wants public highway access and has been unable to obtain it from an adjoining landowner. See Ludke, 87 Wis. 2d at 226.

¶ 10. When deciding on a claim for an easement of necessity, courts employ land use principles similar to those employed in interpretations of conveyances of land. 28A C.J.S. Easements § 91 (1996). Therefore, interpretations relating to land that render any property useless are disfavored. See Sampson Invs. v. Jondex Corp., 176 Wis. 2d 55, 62, 499 N.W.2d 177 (1993) (concluding that" '[alienations of land are, or ought to be, grave and deliberate transactions'" (quoting Frank C. Schilling Co. v. Detry, 203 Wis. 109, 116, 233 N.W. 635 (1930)). One treatise has explained that:

[a] conveyance that would otherwise deprive the land conveyed to the grantee, or land retained by the grantor, of rights necessary to reasonable enjoyment of the land implies the creation of a servitude granting or reserving such rights, unless the language or circumstances of the conveyance clearly indicate that the parties intended to deprive the property of those rights.

Restatement (Third) of Prop.: Creation of Servitudes § 2.15 (2000). Those rights "necessary to reasonable enjoyment of the land" generally have included foot and vehicular access, although access for utilities is becoming increasingly common. Id. at cmt. a; see also Richards v. Land Star Group, Inc., 224 Wis. 2d 829, 838-39, 593 N.W.2d 103 (Ct. App. 1999).

C. First Certified Question

¶ 11. In Wisconsin, an easement of necessity may arise in favor of a property owner if he can prove the following required elements: (1) common ownership of the proposed servient and dominant estates at the time of the severance that created the landlocked condition; and (2) the landlocked parcel had no access to a public roadway after it was severed and such lack of access continues. Schwab, 224 Wis. 2d at 38; see also Jon W Bruce and James W Ely, Jr., The Law of Easements and Licenses in Land § 4:6 (2001). However, while the elements set out above are required preliminarily before an easement of necessity may arise, they may not be sufficient to support an easement of necessity in every case.

¶ 12. We have not been asked previously to address whether an easement of necessity arises as a matter of law or whether its creation is subject to judicial discretion. There appears to be some dispute in other courts about this question. See Richards, 224 Wis. 2d at 852 (Hoover, J., concurring). Therefore, we review relevant precedent to determine if our opinions require clarification.

¶ 13. In Bino v. City of Hurley, 14 Wis. 2d 101, 105-06, 109 N.W.2d 544 (1961), we explained that when a landowner severs a parcel of real estate that has no access to a public highway, an easement to permit ingress and egress from the landlocked parcel "would be implied to have passed to the grantee . . . because such right of way was one of necessity" (citing Sicchio v. Alvey, 10 Wis. 2d 528, 538, 103 N.W.2d 544 (1960), and Bullis v. Schmidt, 5 Wis. 2d 457, 461, 93 N.W.2d 476 (1958)). Additionally, in Ludke, where we reviewed a circuit court's decision to grant an easement of necessity to a landlocked grantee, we reasoned that a way of necessity was properly granted because "[a] way is implied over the land retained by the grantor, [when the grantee has no other highway access over his own land]." Ludke, 87 Wis. 2d at 230. As we explained, "The Ludke property was originally part of the Micke farm and when it was sold as a landlocked parcel of real estate, a way of necessity thereby came into being." Id. at 231. And most recently, we explained that where the factual predicate required for an easement of necessity has been proved, "an easement by necessity will be implied over the land retained by the grantor." Schwab, 224 Wis. 2d at 38.

¶ 14. In each case cited above, we appear to have concluded, as a matter of law, that a grantor who severs property that has no other access to a public highway except through the grantor's property is deemed to have transferred an easement of necessity for ingress and egress to the property of the landlocked grantee. However, we also note that the judicial creation of an easement is inherently equitable in nature. Richards, 224 Wis. 2d at 848. Equitable decisions are generally discretionary. See Wynhoff v. Vogt, 2000 WI App 57, ¶ 13, 233 Wis. 2d 673, 608 N.W.2d 400. Notwithstanding that maxim, when the exercise of discretion will permit only one outcome under the legal standard that must be applied to the facts found, the question about whether to grant the easement becomes one of law. See Vocational, Technical & Adult Educ., Dist. 13 v. DILHR, 76 Wis. 2d 230, 240, 251 N.W.2d 41 (1977). Therefore, although the easements reviewed in Bino and Ludke appear to arise without the exercise of circuit court discretion, they are also consistent with discretionary decision-making.

¶ 15. Accordingly, our decisions in regard to easements of necessity should not be read to imply that an easement of necessity always arises as a matter of law whenever the two required elements are proved because the equities that drive the creation and the scope of an easement may vary, requiring the circuit court to weigh the burdens and benefits the easement would create. For example, when thé landlocked party is the grantor, his participation in causing the landlocked condition may be assessed. "[T]he petitioners' current ownership of landlocked property resulted not from a grant of property to them but by their own acts in conveying away their highway access." Schwab, 224 Wis. 2d at 40. The location of the requested easement is also a factor courts consider. As we explained in Schwab, we have never granted a way of necessity across the properties of unrelated third parties who had no common ownership when the petitioner's landlocked parcel was created, which was the relief requested by the Schwabs. Id. at 40-41.

¶ 16. Furthermore, a bona fide purchaser in the chain of title of a grantor who created a landlocked parcel may have a defense to an easement of necessity if he can show, he had no knowledge or notice, actual or constructive, of either the way of access maintained across his property or the landlocked condition of the severed parcel. See Ludke, 87 Wis. 2d at 229 (citing Schmidt v. Hilty-Forster Lumber Co., 239 Wis. 514, 1 N.W.2d 154 (1942), and Taggart v. Warner, 83 Wis. 1, 53 N.W. 33 (1892)); see also Backhausen v. Mayer, 204 Wis. 286, 290-91, 234 N.W. 904 (1931). Therefore, the combination of factors presented by each case may require a circuit court to weigh and balance them before arriving at a decision. Richards, 224 Wis. 2d at 848-49. This shows the exercise of discretion in a typical fash-, ion. Id. Accordingly, we review the circuit court's decision to determine whether it properly exercised its discretion. City of Brookfield, 171 Wis. 2d at 423.

D. Second Certified Question

¶ 17. Schubring argues that Schwab sets forth the law of easements of necessity in this state for a grantor whose severance of the property caused the landlocked condition to occur. He contends that Schwab directs that only grantees of landlocked property are eligible for easements. The McCormicks, on the other hand, rely on the court of appeals decision in Richards, where the court initially determined whether the required elements of an easement of necessity were met and then balanced the burdens and benefits to each party to determine whether an easement should be granted and, if so, its scope. Richards, 224 Wis. 2d at 848.

¶ 18. We are not persuaded that Schwab is dis-positive of the issues presented by the controversy before us because the Schwabs failed to establish the preliminary elements that are always required for an easement of necessity. They did not prove common ownership of their parcel at the time their parcel became landlocked with the parcels over which they sought an easement. Schwab, 224 Wis. 2d at 40. Instead, they requested an easement over lands held by third parties who were not successors in title from one who was a common grantor when the Schwabs' landlocked condition arose. Id. at 40-41. As we explained, "[I]t would be contrary to this state's policy against encumbrances for this court to award an easement to the petitioners over parcels of unrelated third parties . .. ." Id. Therefore, we did not decide whether an easement of necessity could be afforded to a grantor who was landlocked and had proved all the preliminary elements required. Accordingly, our statement in Schwab that, "An easement by necessity only exists where an owner sells a landlocked parcel to another, in which case the law will recognize a way of necessity in the grantee over the land retained by the grantor," Schwab, 224 Wis. 2d at 40 (emphasis in the original), should be read to further explain that an easement of necessity may traverse property that is or was held by the grantor who created the landlocked condition, but cannot traverse property of an unrelated third party. And, it should not be read to conclude that only a grantee may obtain an easement of necessity for landlocked property. This explanation is also in accord with legal treatises that have concluded that both grantees "and grantors may seek an easement of necessity, Restatement (Third) of Prop.: Creation of Servitudes § 2.15, and the long-standing public policy of this state that favors utilization of land. Dillman v. Hoffman, 38 Wis. 559, 574 (1875).

E. Third Question

¶ 19. Here, in contrast to the Schwabs, the Mc-Cormicks have established all the preliminary elements necessary to their claim for relief. First, Oik owned both the parcel now owned by Schubring (the proposed servient estate) and the parcel owned by the McCor-micks (the proposed dominant estate) when the McCor-micks' parcel became landlocked. Second, the McCor-micks' parcel continues to have no access to a public highway.

¶ 20. We now turn to the additional relevant facts considered by the circuit court as it exercised its discretion. In favor of the McCormicks' claim, the court considered that: (1) extremely limited use can be made of the landlocked property without the requested vehicular access; (2) this is very wild land, used by both parties solely for hunting; (3) while the McCormicks stand in the shoes of a grantor, the creation of the landlocked circumstances was due to Langlade County's seizure of Oik's property for delinquent taxes, not to a voluntary act of the grantor; (4) after the direct access to a highway was taken by the county, Oik continued to reach the landlocked parcel by using the dirt road through the 40 acres now owned by Schubring; (5) when the county sold the 40-acre parcel to Gresch, Oik continued to use the dirt road for access; and (6) when the McCormicks purchased the property from Oik, they knew of the road and used it to access the property, even improving the road with Schubring's consent. In Schubring's favor, the court considered that: (1) when the McCormicks bought the property, they knew they had no legally enforceable right to use the road and that without permission to use it, the parcel they were buying would be landlocked; (2) before Schubring purchased the property, he did not see the dirt road; (3) he checked for an easement "by word of mouth," and by asking the town and county clerks if they had documents pertaining to the property. He found no documents, and no one with whom he spoke told him the property was subject to an easement; (4) he was concerned that if he chose to construct a building on the property, he would be unable to do so because the land is most suitable for building in the area of the road; and (5) his property is less valuable with a legally enforceable easement across it.

¶ 21. The circuit court then balanced the benefits and burdens created by those facts. It noted that while the McCormicks presently have pedestrian access across Schubring's property because the property is under a Wisconsin managed-forest program, all access could be extinguished, when and if Schubring decides to remove the property from the program. Further, the circuit court noted that this is very remote, wild land and that to limit access to foot traffic would involve the McCormicks traversing Schubring's property for more than a quarter of a mile over very rough terrain. The court also concluded that vehicular access to property is more important than in the past, and that the easement of necessity should include vehicular access. The court found the burden to Schubring's property is minimal, as the road is already in existence and has been used by vehicles in the past. It also found that continued use of the road would not prevent the construction of a building on Schubring's property at some time in the future. Accordingly, because the McCormicks proved the elements preliminarily required for an easement of necessity and the circuit court weighed the burdens and benefits to each party's property from the proposed easement, we cannot conclude that it erroneously exercised its discretion in granting the easement. See City of Brookfield, 171 Wis. 2d at 423.

III. CONCLUSION

¶ 22. We conclude that an easement of necessity generally does not arise as a matter of law, but rather, through the exercise of a circuit court's discretion. We also conclude that one who stands in the shoes of a grantor who formerly had access to a public highway but after the severance of a portion of his land retained a landlocked parcel, may obtain an easement of necessity. And finally, the circuit court did not erroneously exercise its discretion in granting the McCormicks the easement. Accordingly, we affirm the judgment.

By the Court. — The judgment of the circuit court is affirmed.

¶ 23. JON E WILCOX, J., did not participate.

        See also Restatement (Third) of Prop.: Creation of Ser-vitudes § 2.15 (2000); Michael J. Geraghty, Equitable Remedies in Property Disputes: A Primer on Partition, Quieting Title and Enjoining Nuisances, 204 N.J. Law. 28 (Aug. 2000).

       Although Schubring did say he did not know of the easement and had not seen the roadway prior to his purchase, he did not raise the defense of a bona fide purchaser without knowledge or notice in the circuit court or before us. Therefore, we do not address that defense further.

       Easements of necessity are "supported by a public policy favoring the full and productive utilization of land." Hunter C. Carroll, Property — Easements by Necessity: What Level of Necessity is Required1?, 19 Am. J. Trial Advoc. 475 (Fall 1995); See also 28A C.J.S. Easements § 91 (1996) ("land should not be landlocked and rendered useless").

       In this regard, the McCormicks' claim is distinguishable from grantors who knowingly convey the part of their properties that includes highway access, as occurred in Rock Lake Estates Unit Owners Ass'n v. Township of Lake Mills, 195 Wis. 2d 348, 373, 536 N.W.2d 415 (Ct. App. 1995), and in Schwab v. Timmons, 224 Wis. 2d 27, 589 N.W.2d 1 (1999). Here, Oik, the common grantor, did not have the opportunity to reserve access for the parcel now owned by the McCormicks.

       There is no claim here, nor could there be, that Oik's and the McCormicks' continued use of the road establishes an easement by prescription. Since their use of the road was with Schubring's (and the prior owners') permission, the elements for a prescriptive easement cannot be established. Ludke v. Egan, 87 Wis. 2d 221, 231-32, 274 N.W.2d 641 (1979).

       We also note that if Schubring had known of the easement prior to his purchase or its use was so open, obvious and notorious that he must have known of it, those facts would have favored the McCormicks' request. See Ludke, 87 Wis. 2d at 228.