By Michael A. Kolcun, Smith, Gambrell and Russell, LLP
Florida’s Sixth District Court of Appeal may have fundamentally altered the procedure for recovering attorneys’ fees in Florida state courts. In Ruffenach v. Deutsche Bank Nat’l Trust Co., No. 6D2023-1482,2026 WL 785140 (Fla. 6th DCA Mar. 20, 2026), the Sixth DCA rejected more than 60 years of Florida caselaw requiring an evidentiary hearing and expert testimony as prerequisites to an award of attorneys’ fees, and the Sixth DCA expressly certified a conflict with every other DCA.
The relevant portion of the underlying dispute was the losing party’s appeal challenging both the merits and the fee award. The Sixth DCA reversed the fee award, not because the trial court failed to conduct an evidentiary hearing and entertain expert testimony on the reasonableness of the requested fees, but because the prevailing party failed to submit time records or other documentation of the work performed by the attorneys.
Yet the Sixth DCA took the opportunity to trace Florida’s fee recovery procedure back 60 years to a Second DCA case, noting that it relied upon no statute, rule of procedure, or Florida Supreme Court holding as authority for imposing this longstanding process. Thus, the Sixth DCA reasoned that the procedure took on a life of its own through mere repetition that has been essentially unquestioned. Going further, the Sixth DCA characterized evidentiary hearings with fee experts as “judicially invented requirements [that] have caused the misspent expenditure of hundreds of thousands if not millions of hours of time by attorneys and judges across our state since their wrongful inception.” Id. at *10.
In its holding, the Sixth DCA rejected the categorical requirement that a trial court must always hold an evidentiary hearing and hear expert testimony before awarding attorneys’ fees. Instead, it held that when no material factual dispute exists (other than disagreements over hourly rates and the number of hours) then a trial court may decide a fee motion on affidavits and written submissions alone.
Concluding, the Sixth DCA certified a conflict with every other DCA by listing nearly 40 cases spanning back to the 1960s. That certification almost guarantees Florida Supreme Court review. Whether the Supreme Court ultimately agrees with the Sixth DCA remains to be seen, but for now it is apparent that practitioners in the Sixth DCA may pursue attorneys’ fees via a more lenient and less expensive procedure.