Shifting Requirements for Preservation of Error: Retreat from Reviewability Under Kozel v. Ostendorf

In 1993, the Florida Supreme Court made a ruling in Kozel v. Ostendorf, which said that before dismissing a case, the judge should consider other options first. Since then, the courts have been clarifying when this ruling applies. Recently, the appeals courts have been asking people to show evidence that they brought up Kozel issues at their hearings before they can appeal. This might make it harder for people to challenge dismissals based on the Kozel ruling. A patient sued a doctor for medical malpractice, but the case was dismissed because the patient didn’t file an amended complaint in time. The patient appealed, and the appeals court agreed with the dismissal. However, one judge disagreed and thought the punishment was too harsh for the mistake made by the patient’s lawyer. This disagreement led to the case going to the Florida Supreme Court. In this case, the court had to decide whether a case should be dismissed because the lawyer didn’t file the necessary paperwork on time. The court decided that it’s not fair to punish the client for the lawyer’s mistake. They came up with a six-part test to decide whether a case should be dismissed. They also said that a transcript of the hearing isn’t necessary to appeal the decision, as long as the order itself doesn’t show that the court considered all the important factors. This allows the client to appeal even if their lawyer didn’t object at the hearing. Overall, the court wants to make sure that clients aren’t unfairly punished because of their lawyer’s mistakes. Recently, the Fourth and Fifth district courts of appeal have been saying that if a trial court doesn’t do a Kozel analysis before imposing a serious penalty, it might not be a reversible error unless the issue is brought up at the trial court level. This is a change from previous thinking, and it means that if the issue isn’t raised in the trial court, it might not be possible to argue it on appeal. In recent legal cases, there has been a debate about whether a litigant should be punished if their lawyer makes a mistake. The court has ruled that a litigant shouldn’t be punished if their lawyer causes a problem, but there are still issues about how the rules are applied. This has caused confusion and unfairness for some people involved in legal cases. It’s important to make sure that everyone is treated fairly in the legal system. This text is about appellate law, which deals with appealing court decisions. The column features two attorneys, Morgan L. Weinstein and Alexis Fields, who specialize in this area of law. They obtained their law degrees from universities in Florida. The column is submitted on behalf of the Appellate Practice Section, which aims to improve the justice system and advance the study of law.

Source: https://www.floridabar.org/the-florida-bar-journal/shifting-requirements-for-preservation-of-error-retreat-from-reviewability-under-kozel-v-ostendorf/