Bishop v. Estate of Rossi

Bishop v. Estate of Rossi, 114 So.3d 235 (Fla. 5th DCA 2013)

An order granting attorney's fees, whether in probate or otherwise, must contain two distinct findings: (1) whether the attorney is entitled to fees and (2) whether the amount of fees is reasonable.  Here, the trial court failed to address the second issue in its order, and thus the case was remanded for clarification on that issue. The Court discussed both prongs of the test:

(1) Whether the attorney is entitled to fees:

The question of whether an attorney is entitled to fees is typically a question of law.  While factual findings can be helpful, the Court explained that "entitlement to attorney's fees is based on the interpretation of contractual provisions...or a statute...as a pure matter of law..." Hinkley v. Gould, Cooksey, Fennell, O'Neill, Marine, Carter & Hafner, P.A., 971 So.2d 955, 956 (Fla. 5th DCA 2007).

(2) Reasonableness of fees:

An order setting the amount of an attorney's fees must make express findings regarding the number of hours reasonably expended and the reasonable hourly rate for that litigation (this is the "lodestar" method for determining fees- adopted by the Florida Supreme Court in Florida Patient's Comp. Fund v. Rowe, 472 So.2d 1145 (Fla. 1985)).  The lodestar method applies equally in probate matters.  Because the trial court did not make written findings in its order granting attorney's fees, the Court could not determine whether the trial court had considered and determined the reasonable number of hours expended and the reasonably hourly rate.  The Court "reluctantly" remanded for a written order making such an express finding.

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