(concurring in part; dissenting in part).
I.
I agree that the trial court's order denying Milwaukee County's motion to vacate the judgment awarding costs against it should be affirmed, but do so for reasons other than those advanced by the majority opinion. Simply put, I believe that Milwaukee County waived any objections it might have had to the trial court's judgment. Accordingly, we need not consider the broader question of whether costs may be awarded against a party who appears to protect its subrogated interest but does not actively participate in the prosecution of the case. See State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514, 520 (Ct. App. 1989) ("cases should be decided on the narrowest possible ground").
Patrick Sampson commenced this action on April 22,1988, and joined Milwaukee County as a defendant in light of the County's subrogated interest. Counsel for Milwaukee County entered his appearance by a document dated June 24, 1988. The amended complaint, which also named Milwaukee County as a defendant, was filed on January 16, 1992. The County entered another "notice of appearance" by a document dated January 23, 1992, and filed on January 24, 1992. This time, however, the County's "notice of appearance" purported to represent the County as "plaintiff," even *31though the caption on the "notice" designated Milwaukee County as a defendant.
The jury verdict adverse to Sampson was filed on January 30, 1992. Sampson filed his post-verdict motion on February 11, 1992, and gave notice of the motion to the individual defendants and their insurance carrier. On February 19, 1992, the individual defendants and their insurance carrier filed their motion for judgment on the verdict. The motion sought, inter alia, the following relief: amendment of the caption "to properly name Milwaukee County as a plaintiff, pursuant to sec. 803.03, Stats.," and "judgment in favor of the defendant State Farm Fire and Casualty Company upon defendant Milwaukee County's $36,629.14 subrogation claim, pursuant to sec. 814.03, STATS."1 Furthermore, this request for costs against Milwaukee County was repeated in the affidavit filed with the motion, where counsel averred that the insurance carrier was "entitled to judgment in the amount of its costs and disbursements against Milwaukee County in this action." On February 19, 1992, both the motion and accompanying affidavit were served on Milwaukee County.
Milwaukee County did not appear at hearing before the trial court on the post-verdict motions. Subsequently, however, in a letter to the trial court, the County objected to the proposed order submitted to the trial court by the individual defendants and their insurance carrier. The County's letter erroneously represented to the trial court that Milwaukee County "was never formally named as a party in the complaint or *32amended complaint." Later, by letter dated May 15, 1992, counsel for Milwaukee County said it was an "oversight on my part in stating the County was not named as a party in the amended Complaint," but continued to represent that "[t]he office [presumably, the Corporation Counsel's office] never received a copy of the original lawsuit."2 This latter representation is, of course, belied by the appearance counsel entered on behalf of the County in 1988.
As the majority notes, the trial court entered judgment against Milwaukee County for costs. Subsequently, Milwaukee County sought relief from the judgment, asserting grounds under Rule 806.07, STATS. In support of its motion, the brief filed by its counsel represented " [i]t is not known by County of Milwaukee if it was a party named in the original Summons and Complaint," and claimed, despite the clear language of the motion for costs and supporting affidavit filed by the insurance carrier, and served on Milwaukee County, that:
Obviously, when the County reviewed defendants' motion after verdict, it did not understand the nature of the pleading. It did not understand that the sole purpose of the amendment [naming Milwaukee County as a party-plaintiff] was to seek substantial costs of the action from the county, a subrogated party, and the only "deep pocket" available in the case, rather than from Sampson, who commenced the action.
*33Furthermore, counsel for Milwaukee County submitted to the trial court an executed but unsworn "affidavit" that also implied, erroneously, that the County was first named as a defendant in the amended complaint, that "in reviewing" the post-verdict motion filed by the defendants "it did not become apparent that the defendants sought costs against the County of Milwaukee," and that "Milwaukee did not consider challenging defendants' motion for judgment on the verdict at the scheduled motion hearing" because "it did not appear that defendant's Motion was detrimental to county interest, but merely a request that the court enter judgment on the verdict as rendered by the jury." The trial court denied Milwaukee County's motion.
Under the circumstances of this case, I conclude that Milwaukee County's unjustified absence from the hearing on the insurance carrier's post-verdict motion for costs waived its right to object to the trial court's order. The motion seeking costs against Milwaukee County was clear on its face. Further, given the obvious misstatements in the submissions to the trial court by Milwaukee County, the trial court would have been justified in imposing sanctions against the County under Rule 802.05(1), Stats. Accordingly, for these reasons, I conclude that the trial court acted well within the ambit of its discretion in denying Milwaukee County's motion under RULE 806.07, STATS. I concur in the result reached by the majority, and would save for another day the more complicated issue of whether costs may be awarded against a party who appears only to protect a subrogated interest.
*34II.
As noted, counsel for Milwaukee County made significant misrepresentations to the trial court. Unfortunately, the County's appellate brief also misrepresents the record. First, the County implies that plaintiff’s original complaint did not join it as a party.3 Second, the County falsely states that the insurance carrier's request for costs against the County was "buried1' in its two-page post-verdict motion and two-page supporting affidavit. Third, the County asserts that it "was surprised" by the trial court's grant of costs against it. Fourth, Milwaukee County's brief before this court gives the following reason for not appearing at the hearing before the trial court on the post-verdict motions, and again significantly misrepresents the record:
[B]ecause said motion never mentions that costs of the action were sought against the County which had previously been named a party-defendant in the action at the eleventh hour on January 16,1992, eleven days before trial held on January 27, 1992. In the eighth paragraph of counsel for defendants' affidavit which was given in support of the above motion; he finally gets around to requesting costs *35against the county. It is submitted to this Court that the motion is misleading and not sufficient to support an order compelling the Comity to pay the costs of the action.
In my view, these misrepresentations warrant imposition of costs by us under RULE 802.05(1), STATS. See Riley v. Issacson, 156 Wis. 2d 249, 261, 456 N.W.2d 619, 624 (Ct. App. 1990) (court of appeals may impose sanctions for violation of Rule 802.05, Stats., on appeal). Additionally, in light of the circumstances outlined in the majority opinion and in this concurrence/dissent, I believe that we should grant the insurance carrier's motion for frivolous-appeal costs under Rule 809.25(3), Stats. Given the broad scope of the trial court's discretion in ruling on a motion brought under Rule 806.07, Stats., counsel for Milwaukee County should have known that this appeal was "without any reasonable basis in the law." See Rule 809.25(3)(c)2, Stats. Accordingly, I dissent from the decision not to award frivolous-appeal costs.
Section 814.03 is the provision that requires the award of costs to the defendant "to be computed on the basis of the demands of the complaint," "[i]f the plaintiff is not entitled to costs under s. 814.01(1) or (3)."
The letter also alleged improper service. Improper service, however, is an affirmative defense, which must be raised by responsive pleading or by motion. Rule 802.06(2)(e), Stats. Milwaukee County never filed a responsive pleading or motion raising this defense. Accordingly, it was waived. See Rule 802.06(8)(a), Stats.
Its brief before this court states:
The original action was commenced on behalf of Patrick Sampson at some time in 1988. County of Milwaukee was not served pursuant to law. The original scheduling order dated July 26,1988, required the parties to complete all amendments to pleadings and joinder of additional parties by September 26, 1988. The original trial by jury was scheduled for October 30, 1989. On January 16, 1992, on the eve of trial, Patrick Sampson amended his complaint naming County of Milwaukee as a party-defendant. County of Milwaukee filed a notice of appearance on January 23,1992.
(Record references omitted.)