Evidentary Hearing

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I. Brief Question and Answers

A. Is a party entitled to a full evidentiary hearing on the issue of attorney's fees, where the incursion of those fees is due to the violation of the frivolous lawsuit statute and where Rule 11 sanctions may be applied?

• Under the frivolous lawsuit statute a court's decision is limited to a finding that the lawsuit in its entirety was frivolous and advanced without cause, barring this, a party will not be prejudiced by an inability to present additional evidence.

• Under Civil Rule 11 a supplemental hearing on attorney's fees should not be had unless an extraordinary circumstance has been presented.

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II. Analysis

RCW 4.84.185 Frivolous Lawsuit Statute Sanctions against the party

An attorney is not entitled to a full evidentiary hearing on attorney's fees where the court has stated its reasons for finding that the claim in its entirety is frivolous and advanced without cause. A lawsuit is frivolous under § 4.84.185 when it cannot be supported by any rational argument on the law or the facts. Smith v. Okanogan County, 100 Wn. App. 7, 4, 4 P.d 857 (000). A court is to consider all evidence presented at the time of the motion to determine whether the suit in its entirety is frivolous. Potts v. Smith, 00 Wash. App. LEXIS 407 (unpublished opinion).

The non-prevailing party appealed a claim for attorney's fees under the frivolous lawsuit statute. Id @1. The party claimed error on behalf of the court for not holding an evidentiary hearing. Id. The court found the trial court is in a reasonable position to make that decision without the consideration of additional evidence. Id. Specifically because the party was not prejudiced by their inability to present additional evidence. Id.

Where the record is clear that the action is frivolous in nature and the award is reasonable the trial court's decision will not be disturbed except for an abuse of discretion.

CIVIL RULE 11 Sanctions against the attorney

An attorney is not entitled to a full evidentiary hearing on sanctions imposed by rule 11. Discovery should only be had when an extraordinary circumstance presents itself. Donaldson v. Clark, 81 F.d 1551 (11th Cir. 187).

"The major goal of CR 11 is to rid the courts of meritless litigation and thereby reduce the growing cost and attendant burden of civil litigation. It would be counter-productive if the rule itself were to cause an increase in unnecessary litigation by mandating extensive collateral procedures as a prerequisite for CR 11 sanctions. Donaldson v. Clark, 81 F.d 1551 (11th Cir. 187). The federal advisory committee notes to Fed. R. Civ. P. 11 plainly state that for this reason, satellite litigation is to be avoided." Watson v. Maier, 64 Wn. App. 88.

While it is fundamental that due process requires notice and opportunity to be heard, Mullane v. Central Hanover Bank & Trust Co., U.S. 06, 14, 4 L. Ed. 865, 70 S. Ct. 65, 657 (150), this does not necessarily mean that an attorney is entitled to a full evidentiary hearing on CR 11 sanctions. Generally, the court should limit the scope of the sanction proceedings to the record. See, e.g., Delaney v. EPA, 88 F.d 687 (th Cir. 10); Donaldson v. Clark, supra; Oliveri v. Thompson, 80 F.d 165, 180 (d Cir. 186); Brown v. National Bd. of Med. Examiners, 800 F.d 168 (7th Cir. 186).

The sanction attorney is not entitled to an evidentiary hearing.

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