Wilson v. Salamon

• Decision Date: 20 October 2005
• Docket Number: No. SC04-140.,SC04-140.
• Citation: 923 So.2d 363
• Parties: Gloriann WILSON, etc., et al., Petitioners, v. Eva J. SALAMON, M.D., et al., Respondents.
• Court: Florida Supreme Court

Page 363

923 So.2d 363

Gloriann WILSON, etc., et al., Petitioners, v. Eva J. SALAMON, M.D., et al., Respondents.

No. SC04-140.

Supreme Court of Florida.

October 20, 2005.

Rehearing Denied February 15, 2006.

Wayne Johnson of DeCiccio and Johnson, Winter Park, FL, for Petitioner.

Robert A. Hannah and Robin D. Black of Hannah, Estes and Ingram, P.A., Orlando, FL, for Respondent.

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. Salamon, 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).¹ 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 measure 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...