Gloriann WILSON, etc., et al., Petitioners, v. Eva J. SALAMON, M.D., et al., Respondents, 923 So. 2d 363

ANSTEAD, J. We have for review a decision of a district court of appeal which addresses the following question, certified to be of great public importance by the district court: AFTER THE DECISION IN METROPOLITAN DADE COUNTY V. HALL, 784 So.2d 1087 (Fla.2001), ARE TRIAL COURT ORDERS THAT ARE ENTERED AND FILED TO RESOLVE MOTIONS. THAT HAVE BEEN PROPERLY FILED IN GOOD FAITH UNDER THE RULES OF PROCEDURE AUTOMATICALLY TREATED AS ACTIVITY, OR MUST THE TRIAL COURT CONTINUE TO ASSESS ITS OWN ORDERS TO DETERMINE WHETHER THEY ARE PASSIVE ENTRIES IN THE COURT RECORD? Wilson v.

Salomon, 864 So.2d 1122, 1124 (Fla. 2d DCA 2003), We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer the question by holding that trial court orders that are entered and filed to resolve motions that have been properly filed in good faith should be treated as record activity precluding dismissal under rule 1.420(

e) of the Florida Rules of Civil Procedure. We quash the district court’s decision. Proceedings Below The instant action arises from the Second District Court of Appeal’s decision affirming a circuit court’s dismissal of an action for failure to prosecute. See Wilson, 864 So.2d at 1122. The facts of this case were summarized in the opinion below: Ms. Wilson filed her complaint on March 15, 2001, alleging that her daughter sustained personal injuries at the time of her birth on March 17, 1999, as the result of the negligence of Eva J, Salomon [sic], M.D., and Bond Clinic, P.A. (the defendants).

The defendants filed a timely answer. On June 25, 2001, an attorney from Massachusetts, Kenneth Levine, filed a motion to appear pro hac vice as co-counsel for Ms. Wilson. Our record does not establish that an order was ever entered on this motion. Following some discovery, the defendants objected to certain interrogatories and filed responses to requests for production on October 29, 2001. Thereafter, there was no record activity in this file until Vivian Sparacio, Mr. Levine’s partner, filed a comparable motion to appear pro hac vice as co-counsel for Ms. Wilson.

This motion was granted by an order filed on April 4, 2002. Following this order, no activity occurred in the record until the defendants moved to dismiss the action on November 4, 2002. Id. at 1123 (footnote omitted). The circuit court dismissed the action on November 27, 2002, and the plaintiff sought review in the Second District Court of Appeal. The district court affirmed the circuit court’s dismissal, holding that a motion to appear pro hac vice was insufficient activity to preclude dismissal under rule 1.420(

e) and certified the above-quoted question to this Court as one of great public importance. See id. at 1124. Rule 1.420(

e) Before specifically addressing the certified question in this case, we find it necessary to review the history of rule 1.420(e), which was initially adopted by this Court in 1966. See In re Fla. Rules of Civil Procedure, 187 So.2d 598, 624 (Fla.1966).

The rule in its current version reads: All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person ... after reasonable notice to the parties, unless ... a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute. Fla. R. Civ. P. 1.420(e).

This, of course, is the rule under which the circuit court and district court resolved the motion to dismiss in this case.

The original rule was adopted in 1966 at a time when an existing corresponding statute provided: All actions at law or suits in equity ... in which there shall not affirmatively appear from some action taken by filing of pleadings, order of court, or otherwise, that the same is being prosecuted, for a period of one year, shall be deemed abated for want of prosecution and the same shall be dismissed by the court ... upon its own motion or upon motion of any person interested ... provided that actions or suits dismissed ... may be reinstated by petition upon good cause shown.... § 45.19(1), Fla.

Stat. (1965) (emphasis supplied). The language of the rule adopted by this Court in 1966 was similar to the statute it replaced: All actions in which it does not affirmatively appear from some action taken by filing of pleadings, order of court or otherwise that the same is being prosecuted for a period of one year shall be ... dismissed by the court on its own motion or on motion of any interested person ... after notice to the parties; provided that actions so dismissed may be reinstated on motion for good cause, such motion to be served by any party within one month after such order of dismissal. In re Fla.

Rules of Civil Procedure, 187 So.2d at 624 (emphasis supplied). The statute was repealed after we adopted the rule. See ch. 67-254, § 49 at 691, Laws of Fla. In 1976, and again in 1980, we revised the rule. In our 1976 revision we removed the word “affirmatively” and added the condition that activity sufficient to preclude dismissal must appear “on the face of the record.” Fla. Bar re Rules of Civil Procedure, 391 So.2d 165, 173 (Fla.1980); In re Fla. Bar, Rules of Civil Procedure, 339 So.2d 626, 629 (Fla.1976).

A committee note published with the 1976 revision indicated that we were amending the rule’s language to “prevent the dismissal of an action for inactivity alone unless one year has elapsed since the occurrence of activity of record.” In re Fla. Bar, Rules of Civil Procedure, 339 So.2d at 629 committee note (emphasis supplied). Our revision of the rule in 1976 apparently came in response to confusion surrounding the issue of the type of activity sufficient to “affirmatively” establish that action occurred sufficient to avoid dismissal under the rule.

This confusion in turn can be traced at least in part to language contained in our 1951 opinion in Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706 (Fla.1951), in which we interpreted the meaning of the statutory predecessor to rule 1.420(e). Id. at 707. In Gulf Appliance, we addressed whether an order allowing the withdrawal and substitution of counsel constituted sufficient activity to preclude dismissal for failure to prosecute under

section 45.19(1), Florida Statutes (1949). See 53 So.2d at 707. In holding that the entry of such an order was not sufficient, we stated that the requirement is “something more than a mere passive effort to keep the suit on the docket of the court; it means some active meastire taken by [the] plaintiff, intended and calculated to hasten the suit to judgment.” Id. (quoting Augusta Sugar Co. v. Haley, 163 La. 814, 112 So. 731, 732 (1927)).

The analysis we outlined in Gulf Appliance was an effort to construe the parameters of the term “affirmatively” that was employed in the statute by the Legislature when the statutory provision at issue was originally enacted. However, as noted above, we removed the term “affirmatively” from the language of rule 1.420(

e) in 1976 and added the above-referenced commentary in an effort to reduce the confusion surrounding the meaning and purpose of the rule. Nevertheless, despite these actions, our analysis in Gulf Appliance has continued to influence this Court and other Florida courts attempting to apply rule 1.420(e). See Moossun v.

Orlando Reg’l Health Care, 826 So.2d 945, 946 (Fla.2002) (holding that the trial court’s order setting a case management conference did not constitute sufficient “record activity” to preclude dismissal for failure to prosecute as it was not an affirmative act calculated to hasten the suit to judgment); Toney v. Freeman, 600 So.2d 1099, 1100 (Fla.1992) (“Record activity must be more than a mere passive effort to keep the case on the docket; the activity must constitute an affirmative act calculated to hasten the suit to judgment.”); Barnett Bank v. Fleming, 508 So.2d 718, 720 (Fla.1987) (same); Moransais v.

Jordan, 870 So.2d 177, 178 (Fla. 2d DCA 2004) (same); Sewell Masonry Co. v. DCC Constr., Inc., 862 So.2d 893, 896 (Fla. 5th DCA 2003) (same), review dismissed, 870 So.2d 823 (Fla.2004); Florez v. City of Miami 858 So.2d 378, 378 (Fla. 3d DCA 2003) (same); Nicolitz v. Baptist Eye Inst., P.A., 830 So.2d 270, 272 (Fla. 1st DCA 2002) (same); Kearney v. Ross, 743 So.2d 578, 580 (Fla. 4th DCA 1999) (same). ■Today we reconsider whether continuing to apply the Gulf Appliance analysis properly balances the policies that we sought to advance in enacting the rule and in subsequently enacting amendments to the rule.

Initially, we conclude that the analysis is inconsistent with the plain language of the current rule and the commentary that accompanied our 1976 amendment. Upon reflection, we also conclude that the Gulf Appliance analysis is inconsistent with the policies we sought to balance by enactment of the rule and the 1976 amendment. The plain language of the rule contemplates that an action cannot be dismissed under the rule for failure to prosecute if some “action has been taken by filing of pleadings, order of court, or otherwise” within the past year. In re Fla.

Rules of Civil Procedure, 211 So.2d 206, 207 (Fla.1968). • In. addition, the commentary we added in 1976 explicitly echoed this plain meaning in explaining that a dismissal could not be obtained for inactivity alone unless there is no record activity for a period of at least one year. We would like to say that our meaning could not have been clearer, but our subsequent case law suggests otherwise. Nevertheless, in some cases this meaning was properly explained. As Justice Wells noted in Metropolitan Dade County v.

Hall, 784 So.2d 1087 (Fla.2001): [Ajctions “shall” be dismissed if it appears on the face of the record that there was no activity within the past year. This requires only a review of the record. There is either activity on the face of the record or there is not. If a party shows that there is no activity on the face of the record, then the burden moves to the non-moving party to demonstrate within the five-day time requirement that one of the three bases that would preclude dismissal exists. The factors from Del Duca [v.

Anthony, 587 So.2d 1306 (Fla.1991) ], whether any activity was done in good faith and whether the activity was with any design to move the case forward, are components in evaluating whether good cause exists. We also note that when there is record activity occurring during the preceding year, such as a notice for trial which has not been acted on by the trial court, good cause always exists.

However, we expressly state that, when there is no record activity for a year and a hearing is set on a dismissal motion, the non-moving party must set forth in writing five days before the hearing the record activities that move the case forward to a conclusion upon which that party relies as good cause. Id. at 1090 (footnote and citation omitted). Further, we held in Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla.2000), that the mere filing of a motion to disqualify the presiding trial judge was sufficient activity to preclude dismissal for failure to prosecute. Id. at 1066.

In these opinions, at least, we appear to have been true to the plain language of the rule and the 1976 commentary. Today, we attempt to remedy our past errors of construction and return to the plain meaning and, more importantly, the purpose and policy of the rule. We conclude that continuing to abide by the principles of stare decisis where there has been a clear showing, as we believe there has been here, that our original purpose and policy have been undermined, only serves to undermine the integrity and credibility of our court system. See Weiand v.

State, 732 So.2d 1044, 1055 n. 12 (Fla.1999) (“Although stare decisis is fundamentally important in our system of justice, it is not ‘an ironclad and unwavering rule’ so that we must bend to the Voice of the past, however outmoded or meaningless that voice may have become.’ ”) (quoting Haag v. State, 591 So.2d 614, 618 (Fla.1992)); State v. Gray, 654 So.2d 552, 554 (Fla.1995) (same). Continuing confusion over the meaning and application of rule 1.420(

e) convinces us that it is time we reexamine the intentions of this Court when we initially adopted the rule and amended it in 1976 to remove the language “affirmatively.” Rather than allowing continuing confusion surrounding the rule to continue, we conclude that interpreting the language of Florida Rule of Civil Procedure 1.420(e), as amended in 1976, by its plain meaning will further the purpose of decreasing litigation over the purpose of the rule and fostering the smooth administration of the trial court’s docket.

Balancing Competing Policies In adopting the rule, we were confronted with balancing two important but often competing policies and concerns in supervising the orderly and fair resolution of civil litigation: one, to see that legitimate disputes are fairly resolved in the courts on the merits, and the other, to identify cases that are not being properly prosecuted and whose presence in the system may hinder the courts in processing other cases on the merits. Those concerns remain with us.

Florida’s Constitution provides that the courts will be open and accessible to our citizens to address all legitimate grievance,s. Art. I, § 21, Fla. Const. Hence, a primary concern of the courts is to see that! cases are resolved on their merits. A secondary concern is to see that the resolution of cases on the merits is not impaired by the processing of cases without merit or cases that are filed and then abandoned in the system. It is this secondary concern that is addressed by rule 1.420(e).

However, while we have provided a mechanism for identifying the “dead viood” in tip system, we must never lose sight of our ^primary policy of fostering resolution of cases on the merits. We must be careful not to “throw out the baby with the bath water.” We must also acknowledge that today the system provides other methods for seeing that cases are properly and promptly resolved including mediation, case management, and time standards for judges. Nevertheless, we continue to believe that! rule 1.420(

e) has a useful role to play in processing cases through the system. The> language adopted by us in 1976 in pertinent part reads: All actions in which it appears on the fdce of the record that no activity by filings of pleadings, order of court, or otherwise has occurred for a period of one year shall be dismissed.... In re Fla. Bar, Rules of Civil Procedure, 339 So.2d at 629 (emphasis added); see also; Fla. R. Civ. P. 1.420(e).

By this language, we provided a clear mechanism for initially identifying those cases not being ¡diligently prosecuted, i.e., those cases in which no record activity took place within ai year. While the selection of the period of a year may have appeared arbitrary, that was the time period in the statute and) of course, any time period selected would be somewhat arbitrary. But we picked a year of record inactivity that would presumptively require dismissal.

However, we also provided a safeguard to ensure that legitimate matters would be decided on the merits, a provision allowing for a showing of good cause for failure to act within the year. Thus, the rule provides a balance to address the two policy concerns discussed above.

However, the language of the rule is clear — if a review of the face of the record does not reflect any activity in the preceding year, the action shall be dismissed, unless a party shows good cause why the action should remain pending; however, if a review of the face of the record reveals activity by “filings of plead-, ings, order of court, or otherwise,” an action should not be dismissed. See Hall, 784 So.2d at 1090. This construction of the rule establishes a bright-line test that will ordinarily require only a cursory review of the record by a trial court.

As Justice Wells noted in Hall, there is either activity on the face of the record or there is not. Id. We find this bright-line rule appealing in that it establishes a rule that is easy to apply and relieves the trial court and litigants of the burden of determining and guessing as to whether an activity is merely passive or active. It is this burden which has created the difficulty with which litigants and trial courts have struggled to determine whether a particular filing or action will advance the cause to resolution.

The subjective analysis that is currently being applied in that struggle has simply proven unworkable and has spurred an increase in non-merit-based litigation that has led us down a path we are no longer willing to follow. Too many times we have seen that reasonable persons have assessed and reached contrary conclusions as to whether particular filings or actions would hasten the proceedings to conclusion. The analysis has simply become too subjective. This Case In the case at hand, there is no dispute that an order of court was entered and this order appears on the face of the record.

In turn the provision of the rule permitting dismissal where “no activity by filings of pleadings, order of court, or otherwise” within the past year cannot be satisfied. Fla. R. Civ. P. 1.420(e) (emphasis added). The appearance of the order of court on the record in these proceedings prevents rule 1.420(

e) from being utilized as a basis for dismissal. Conclusion For the reasons stated herein, we now recede from our prior

interpretations of rule 1.420(

e) insofar as those

interpretations require a trial court to look behind the face of the record to subjectively determine whether the activity reflected of record is merely passive, and therefore insufficient to preclude dismissal under the rule, or active and therefore designed to hasten the suit to a conclusion on the merits and therefore sufficient to preclude dismissal. Instead, we return to the plain meaning of the rule as specifically set forth in the words of the rule as discussed above.

While indeed the committee note we included in 1976 was not literally made part of the rule, it was intended as an aid to construction and use of the rule, and remains in place today for that purpose. Accordingly, we quash the decision of the district court, answer the certified question as set out herein, and remand the cause to be considered in light of the analysis we have outlined in this opinion. It is so ordered. PARIENTE, C.J., and LEWIS and QUINCE, JJ., concur. PARIENTE, C.J., concurs with an opinion, in which ANSTEAD, J., concurs.

BELL, J., concurs in part and dissents in part with an opinion, in which CANTERO, J., concurs. WELLS, J., dissents with an opinion. . In our opinion, however, we noted that the committee notes were not to be considered as part of the rule itself. In re Fla. Bar, Rules of Civil Procedure, 339 So.2d at 626. This notation has apparently itself caused further debate with some construing the note to mean that the committee note could be ignored. We reject any such

interpretation today, since it would render meaningless the underlying purpose of committee notes, which is to avoid confusion over the purpose of the rule. . Similarly, in Del Duca v. Anthony, 587 So.2d 1306, 1309 (Fla.1991), we approved the following text from the Second District's opinion in Anthony v. Schmitt, 557 So.2d 656 (Fla. 2d DCA 1990): First, the defendant must establish that there has been no record activity for the year preceding the motion.

If there has been no record activity within the year, then the plaintiff is given an opportunity to establish good cause in writing why the action should remain pending. The analysis during the first step favors the plaintiff. So long as the plaintiff’s efforts are not "mere passive effort[s] to keep the suit on the docket,” the plaintiff prevails. During the second step, however, the analysis favors the defendant, and the plaintiff has a "high” burden to establish good cause. Schmitt, 557 So.2d at 659 (citation omitted) (quoting Eastern Elevator, Inc. v. Page, 263 So.2d 218, 220 (Fla.1972)).

While this analysis is similar to that in Hall, it still includes the passive efforts concept from Gulf Appliance and the earlier statute. . The rule and this opinion do not address the inherent authority of the trial court to dismiss actions determined to be frivolous or to otherwise impose sanctions for serious misconduct or breach of court rules or orders.