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. The ultimate conclusion about whether what was known or should have been known supports a finding of frivolousness is a question of law, which we review independently of the conclusions of the trial court. 100 Wis. 2d at 602.
Otter Creek claims that a hearing was required prior to awarding attorney fees.
Determination of attorney fees may be made without an evidentiary hearing where the facts are undisputed and only a question of law remains. 99 Wis. 2d at 793. Here, the trial court relied on the deposition of Mike Tainter to support its finding that Otter Creek's continued assertion of its defenses was frivolous. However, in opposition to Kerbell's motion, Otter Creek submitted an affidavit by Richard Morris, one of the owners of Otter Creek. In his affidavit, Morris disputes Tainter's testimony.