Kerbell, who had prepared for trial, then moved for attorney fees and costs pursuant to Wis. Stat. The court allowed each side to file briefs and any other submissions regarding the motion. Kerbell relied on Tainter's deposition. He was the only witness deposed. Based on that deposition, Kerbell maintained that Otter Creek knew or should have known that its defenses were without any factual basis.
Otter Creek appeals the order.
A finding of frivolousness under Wis. Stat. 2 is based on an objective standard. The standard is whether the party or attorney knew or should have known that the position taken was frivolous as determined by what a reasonable person would have known or should have known under the same or similar circumstances. Determining what was known or should have been known involves questions of fact. Findings will not be upset unless they are against the great weight and clear preponderance of the evidence.