(concurring in part; dissenting in part). The majority concludes that a motion for costs and fees under § 814.025, Stats., or § 802.05(l)(a), Stats., must be filed before judgment. I concur as to § 802.05(l)(a), but not as to § 814.025. I conclude that by enacting § 814.025(4), the legislature intended that claims of frivolousness as to a pleading, motion or other paper would be made as the frivolous document was filed.1
*295We have held that the trial court may make a finding that an action is frivolous under § 814.025(1), STATS., after judgment. In re Estate of Bilsie, 100 Wis. 2d 342, 356, 302 N.W.2d 508, 516-17 (Ct. App. 1981). We rejected the appellant's interpretation of "upon judgment" to mean "at the time of judgment." Id., 302 N.W.2d at 516. Section 814.025(1) does not contain a requirement that a party seeking costs and fees under that section must file his or her motion prior to judgment. That requirement is imposed by the majority by judicial construction.
Plainly, our decision herein must be published because it deals with an important question on which there is no precedent. Upon publication, we will have a decision — Bilsie—interpreting "upon judgment" to include proceedings after judgment and we will have this decision concluding that "upon judgment" does not mean after judgment.
When the supreme court has prescribed a time within which a motion for costs and fees shall be filed, it has done so expressly. Section 809.25(3)(a), STATS., provides in part: "A motion for costs, fees and attorney fees under this subsection [Frivolous appeals] shall be filed no later than the filing of the respondent's brief or, if a cross-appeal is filed, the cross-respondent's brief,"
I next examine the language of §§ 814.025(1) and 802.05(l)(a), STATS., to determine whether the language supports the majority’s construction. Section 814.025(1) provides:
If an action or special proceeding commenced or continued by a plaintiff or a counterclaim, defense or cross complaint commenced, used or continued *296by a defendant is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs determined under s. 814.04 and reasonable attorney fees.
(Emphasis added.)
It cannot be seriously argued that "during the proceedings" does not include entry of judgment. Because the legislature used the disjunctive "or," we must assume that the legislature intended "upon judgment" to mean something other than "during the proceedings." Logically, that can only be after judgment.
Historically, trial courts have assessed costs and fees under § 814.025, Stats., after judgment. See, e.g., Stern v. Thompson & Coates, Ltd., 185 Wis. 2d 220, 231-33, 517 N.W.2d 658, 662 (1994). In Stern, summary judgment was granted as to all the defendants. The plaintiff appealed and we affirmed the judgments. When the record was returned, the circuit court conducted a hearing on the outstanding motions for fees under §§ 814.025 and 802.05(1), STATS. 185 Wis. 2d at 233, 517 N.W.2d at 662.
In Leske v. Leske, 185 Wis. 2d 628, 633, 517 N.W.2d 538, 540 (Ct. App. 1994), we concluded that defendant's counterclaim for costs and attorney fees under § 814.025(3)(a), Stats., did not make the order granting partial summary judgment nonfinal for purposes of appeal. We relied on ACLU v. Thompson, 155 Wis. 2d 442, 455 N.W.2d 268 (Ct. App. 1990), where we held that the judgment under 42 U.S.C. § 1983 was final despite the fact that plaintiffs request for costs and attorney fees under 42 U.S.C. § 1988 remained unresolved. Leske, 185 Wis. 2d at 631, 517 N.W.2d at 539 (citing ACLU, 155 Wis. 2d at 446, 455 N.W.2d at 270). We said:
*297The statute [§ 814.025] does not establish a time limit for a party's request, and a trial court may find frivolousness on its own motion. This court has seen 814.025 requests raised in a counterclaim ..., in an answer as an affirmative defense, and by motion filed after the trial court has addressed [the] merits of the litigation.
Id. at 633, 517 N.W.2d at 540 (emphasis added).
Although we may have erred in considering § 814.025, Stats., a fee-shifting statute,2 the rationale of ACLU and Leske is not weakened. If anything, the imposition of a sanction for maintaining a frivolous action is more appropriately applied after the case is in and the court is in a better position to decide whether the action is frivolous. In ACLU, we stated that awarding attorney fees and costs under 42 U.S.C. § 1988 is comparable to execution on a judgment and confirmation of a foreclosure sale. 155 Wis. 2d at 447, 455 N.W.2d at 270. We stated:
In each instance, the merits of the underlying action have been completely adjudicated by the trial court. An order confirming a sale on execution or a foreclosure sale is appealable as a final order. Each matter is related to but separate from the underlying action. Attorney's fees awardable in a civil rights action under 42 U.S.C. sec. 1988 "are not compensation for the injury giving rise to an action. Their award is uniquely separable from the cause of action to be proved at trial." White v. New Hampshire Dept. of Empl. Sec., 455 U.S. 445, 452 (1982).
Id. (emphasis added; citation omitted).
*298An award of costs and attorney fees under § 814.025, STATS., is "uniquely separable" from the cause of action to be tried because the issue on a motion for costs and fees under the statute does not depend upon the trial result; frivolousness is not determined by whether a party's position at trial carries the day but whether the party presents an issue to the court or jury which is "fairly debatable." See Stern, 185 Wis. 2d at 247 n.11, 517 N.W.2d at 668. In fact, a party may not know whether he or she has a claim under § 814.025 until the trial is completed.
The majority has not convinced me that there is anything in the law or logic which prevents a party, or the trial judge on his or her own motion, from raising the issue of frivolousness after judgment. It may not be possible in many cases to determine frivolousness until the legal proceedings are completed. Because an early assertion of frivolousness will put the other party on notice, I favor a statute or rule which requires a party to assert that issue at the earliest possible time. However, that is a matter for the legislature or the supreme court.
The majority cites a number of definitions of "upon," including some which support appellant's position. Unfortunately, the majority does not recognize that the phrase "upon judgment" is ambiguous. The majority states: "We thus read the 'upon judgment' language in § 814.025(1), Stats., as meaning what it says: at or upon the time judgment is entered in the case." Majority op. at 286.1 believe that construction is necessary.
In construing a statute which is ambiguous, we look first to the language of the statute. Mallow v. Angove, 148 Wis. 2d 324, 331, 434 N.W.2d 839, 842 (Ct. App. 1988). I believe that the legislature's reference to *299§ 814.04, STATS., points the way to the appropriate construction of the term "upon judgment." Section 814.025(1), Stats., provides that upon a finding of frivolousness, "the court shall award to the successful party costs determined under s. 814.04 and reasonable attorney fees." (Emphasis added.)
Costs are enumerated in § 814.04, STATS., and are taxed under § 814.10(1), Stats., which provides: "The clerk shall tax and insert in the judgment... the sum of the costs and disbursements . . . verified by affidavit." (Emphasis added.) Subchapter I, COSTS IN CIVIL ACTIONS AND SPECIAL PROCEEDINGS, does not require that an application for costs be made within a specified time after judgment. I believe the court could refuse to allow costs in the appropriate case if the party entitled thereto has been dilatory. This would be especially true when the item of costs includes reasonable attorney fees under either § 814.025 or 802.05, Stats. The latter statute does not require that a motion for a sanction thereunder be filed during the proceedings. However, that statute does not apply to an action, special proceeding, defense or counterclaim but to "[e]very pleading, motion or other paper." I believe that § 802.05 requires a party or the court to address the frivolousness of pleadings, motions or other papers as they are filed.
Under the federal counterpart of § 802.05, STATS., Rule 11 of the Federal Rules of Civil Procedure,3 a motion for sanctions under the rule must be made separately from other motions or requests. However, the motion shall not be filed with or presented to the court unless, within twenty-one days after service of the motion, the challenged paper, claim, defense, conten*300tion, allegation, or denial is not withdrawn or appropriately corrected. Fed. R ClV. P. ll(c)(l)A. The experience of the federal courts.with former Rule 11 convinced those who used the rule or defended against it that the rule should be a trial remedy. Further, the erring party or attorney should be given the opportunity to correct the error. Thus, it would be inappropriate under that rule to wait until after trial to allege that a pleading, written motion or other paper is frivolous. I believe the tenor of § 802.05 is consonant with Rule 11. Therefore, I agree that a motion for sanctions under § 802.05 should be made when the frivolousness of a pleading, motion or other paper comes to the attention of the party or the court.
Subsection (4) was added to § 814.025, STATS., in 1987.1987 Wis. Act 256, § 16. That provision provides: "To the extent s. 802.05 is applicable and differs from this section, s. 802.05 applies." I conclude that the legislature intended § 802.05, Stats., to apply during trial and § 814.025 to apply when it is the action, special proceeding, counterclaim, or defense which is frivolous, and not when a particular paper such as an affidavit or a motion is deemed frivolous. It is questionable whether federal cases interpreting Rule 11 prior to its revision remain persuasive.
Because the trial court based its denial of defendant's motion on its interpretation of the statutes, we are presented with an issue of law. In an appropriate case, however, the trial court could exercise its discretion to deny a motion under § 814.025 or 802.05, Stats., because of the litigant's laches.
Section 814.025(4), STATS., provides: "To the extent s. 802.05 is applicable and differs from this section, s. 802.05 applies." 1987 Wis. Act 256, § 16. Section 814.025 would be invoked when a party claimed that the action, proceeding, claim, counterclaim, defense or cross-complaint is frivolous. I do not believe that claims as to the frivolousness of pleadings, *295motions or other papers may be "saved up" and form the basis for a motion under either § 802.05 or 814.025, Stats.
See Robert D. Sundby, Awarding Reasonable Attorney Fees Upon Frivolous Claims and Counterclaims Under §814.025, Stats., 53 Wis. B. Bull. 11 (May, 1980) (§ 814.025 imposes a sanction and is not a fee-shifting statute).
Rule 11 was amended effective December 1, 1993. Fed. R. Civ. P. 11.