author: THOMPSON, Presiding Judge.

text:
    Kristie Jones TREADWELL v. Tom FARROW and Wylene Farrow
    2160667
    Court of Civil Appeals of Alabama.
    October 27, 2017
    Mark Allen Treadwell of Oliver &Treadwell, L.L.P., Dadeville, for appellant.
    John Keith Warren, Ashland, for appellees.
   THOMPSON, Presiding Judge.

Kristie Jones Treadwell appeals from the judgment of the Tallapoosa Circuit Court ("the trial court") disposing of her conversion and unjust-enrichment action against Tom Farrow and Wylene Farrow.

The facts in this case are not in dispute. Treadwell filed this civil action on December 15, 2016. In her verified complaint, Treadwell asserted that her two brothers, Kenneth Jones and Kevin Jones, and she were the sole heirs of their mother, Bobbie B. Jones ("Bobbie"). Bobbie had owned certain real property ("the property") in Camp Hill. The property was foreclosed upon, and, on April 9, 2010, the Farrows purchased it at the foreclosure sale.

Treadwell alleged in the complaint that "personal property, vehicles, removable buildings, business property, and nonattached dwellings" (all of which she thereafter characterized as personal property and which we will hereinafter refer to as "the personal property") belonging to her brothers and her remained on the property. She stated that the Farrows had barred her from retrieving the personal property and had converted it to their own use. Treadwell also claimed that she had a reasonable expectation of being compensated for the personal property and that the Farrows' retention of it would be unjust and inequitable. Treadwell also alleged that the Farrows had "secured [her] personal property through improper means."

The Farrows filed a motion to dismiss Treadwell's complaint on the ground that the complaint was barred by the applicable statute of limitations. In their motion, the Farrows pointed out that, pursuant to § 6-2-34, Ala. Code 1975, a conversion action must be commenced within six years. They had acquired the property by means of a foreclosure deed on April 9, 2010, and Treadwell had waited more than six years later, until December 16, 2016, to bring this action. Accordingly, the Farrows argued, Treadwell's complaint was due to be dismissed.

In her response to the Farrows' motion, Treadwell submitted her affidavit in which she stated that she did not vacate the property until March 2012. She said that she moved and then "rented out" the property, but she did not state for how long. She also stated that her attorney had sent a letter to the Farrows' attorney on September 28, 2015, requesting the return of the personal property contained in a list accompanying the letter. The Farrows sent a return letter dated October 9, 2015, denying her access to the property. She also pointed out in her response that "her family" had attempted to redeem the property through a civil action, which had been unsuccessful. In her affidavit, she said that an appeal in that action was not concluded until August 26, 2015.

On March 1, 2017, after a hearing during which the trial court heard the arguments of the parties, the trial court entered a judgment dismissing Treadwell's action. Treadwell filed a timely motion to alter, amend, or vacate the judgment, which the trial court denied on April 26, 2017. Treadwell then filed a timely notice of appeal on May 22, 2017.

"[T]he standard for granting a motion to dismiss based upon the expiration of the statute of limitations is whether the existence of the affirmative defense appears clearly on the face of the pleading. Sims v. Lewis, 374 So.2d 298 (Ala. 1979) ; Browning v. City of Gadsden, 359 So.2d 361 (Ala. 1978) ; Wright & Miller, Federal Practice and Procedure, Civil& 1357 [sic], at 605 (1969)."

Braggs v. Jim Skinner Ford, Inc., 396 So.2d 1055, 1058 (Ala. 1981). However, in opposing the Farrows' motion to dismiss, Treadwell attached documentary evidence in the form of her affidavit, in which she said that she had been in possession of the property as late as March 2012.

"When a plaintiff presents evidence to the trial court in opposition to a defendant's motion to dismiss and the trial court does not specifically exclude that evidence, we must assume that the trial court considered that evidence in ruling on the motion, which automatically converts the motion to dismiss into a summary-judgment motion, and we must review the trial court's judgment granting that motion under the standard of review applicable to a summary judgment. See Travis v. Ziter, 681 So.2d 1348, 1351 (Ala. 1996). In Travis v. Ziter, 681 So.2d at 1351, the supreme court stated:
" 'If the court considers matters outside the pleadings in ruling on the defendant's motion to dismiss, then the motion is converted into a motion for summary judgment, regardless of how the motion was styled. Rule 12(b), Ala. R. Civ. P.; Papastefan v. B & L Constr. Co., 356 So.2d 158 (Ala. 1978). The circuit court held a hearing to consider the defendants' motions to dismiss, and the [plaintiffs] presented affidavits from Steve Travis and the clinical psychologist who had been treating him. Because there was no indication during the course of the hearing, or in the circuit court's order dismissing the plaintiff[s'] claims, that the court had excluded the affidavits, we must assume that the circuit court considered them when it ruled on the motions. Thus, we must analyze the motions to dismiss under the summary judgment standard. Rule 12(b), Ala. R. Civ. P.'
"The supreme court recited the standard of review applicable to a summary judgment in Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala. 2004) :
" 'This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce "substantial evidence" as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989) ; Ala. Code 1975, § 12-21-12. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala. 1989).' "

Bearden v. Coker, 121 So.3d 359, 364-65 (Ala. Civ. App. 2012).

On appeal, Treadwell argues that, because she remained on the property until March 2012 and still exercised dominion over her personal property until that time, the six-year limitations period for conversion cannot have begun running until that date, at the earliest. She also claims that she was not actually denied access to her personal property until October 9, 2015, when the Farrows' attorney responded to her letter requesting the return of her personal property. Therefore, she states, the limitations period arguably did not begin to run until the Farrows prevented her from having access to the personal property. The Farrows, on the other hand, contend that Treadwell did not "possess" the property after the foreclosure sale, and so, they say, she was "at best" a trespasser during the time she said she "possessed" the property. Accordingly, they argue, they have not wrongfully denied her access to the personal property.

The Farrows' argument would be more persuasive if Treadwell's conversion claim was directed at the property. However, the conversion claim is based on her assertion that the Farrows have refused to allow her to retain specific items of personal property that were not subject to the foreclosure. We note that we are not called on to decide whether any certain items were fixtures or were structures that were, in fact, included as part of the foreclosure, or as to the other merits of Treadwell's claim. Instead, we review this matter only for the purpose of determining whether a summary judgment was properly entered in favor of the Farrows.

In considering whether the limitations period had expired at the time Treadwell filed her complaint, we must first consider the issue of when her cause of action accrued.

"In Garrett v. Raytheon Co., ... 368 So.2d [516] at 518-19 [ (Ala. 1979) ], this Court stated:
" 'The very basic and long settled rule of construction of our courts is that a statute of limitations begins to run in favor of the party liable from the time the cause of action "accrues." The cause of action "accrues" as soon as the party in whose favor it arises is entitled to maintain an action thereon.
" '....
" '... [T]here are cases where the act complained of does not itself constitute a legal injury at the time, but plaintiff's injury only comes as a result of, and in furtherance and subsequent development of, the act defendant has done. In such cases, the cause of action "accrues," and the statute of limitation[s] begins to run, "when, and only when, the damages are sustained." '
"(Quoting Kelley v. Shropshire, ... 199 Ala. [602] at 605, 75 So. [291] at 292 [ (1917) ].) Thus, if the act complained of does not in and of itself constitute a legal injury on the date on which it was performed, the cause of action does not accrue on that date. It is only when the first legal injury occurs that the cause of action accrues and the limitations period begins to run."

Ex parte Floyd, 796 So.2d 303, 308 (Ala. 2001).

"To constitute conversion, there must be a wrongful taking or a wrongful detention or interference, an illegal assumption of ownership, or an illegal use or misuse of another's property. Covington v. Exxon Co. U.S.A., 551 So.2d 935, 938 (Ala. 1989). 'The gist of the action is the wrongful exercise of dominion over property in exclusion or defiance of a plaintiff's rights, where said plaintiff has general or special title to the property or the immediate right to possession.' Ott v. Fox, 362 So.2d 836 (Ala. 1978) (emphasis added). An action for conversion will not lie for the taking of real property, Faith, Hope & Love, Inc. v. First Alabama Bank, 496 So.2d 708, 711 (Ala. 1986), nor will it lie for the taking of personal property that has been incorporated into real property. Hatfield v. Spears, 380 So.2d 262, 265 (Ala. 1980). Kemp Motor Sales v. Lawrenz, 505 So.2d 377, 378 (Ala. 1987)."

Baxter v. SouthTrust Bank of Dothan, 584 So.2d 801, 804-05 (Ala. 1991). See also Gillis v. Benefit Trust Life Ins. Co., 601 So.2d 951, 952 (Ala. 1992) ; and Kelly v. Connecticut Mut. Life Ins. Co., 628 So.2d 454, 460 (Ala. 1993).

In this case, we have found no authority, and the parties have cited no authority, standing for the proposition that Treadwell lost dominion over her personal property that was located on the property at the time of the foreclosure. To the contrary, the evidence appears to be undisputed that Treadwell continued to exercise dominion over that personal property until March 2012, at the earliest. Therefore, at the time the complaint was filed in December 2016, the six-year limitations period would not have expired, and the conversion claim would not be barred by the statute of limitations. Accordingly, the Farrows failed to demonstrate that, as a matter of law, they were entitled to a summary judgment based on their argument that Treadwell's conversion claim was barred by the statute of limitations.

The trial court erred in entering a summary judgment in favor of the Farrows on the basis of the statute of limitations. Accordingly, the judgment is reversed and the cause is remanded for further proceedings. In reaching this holding, we make no determination as to the ultimate issues raised in Treadwell's complaint.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Pittman and Moore, JJ., concur.

Thomas, J., concurs specially, which Donaldson, J., joins.

Kristie Jones Treadwell appeals a judgment of the Tallapoosa Circuit Court in favor of Tom Farrow and Wylene Farrow. I concur in the main opinion, which reverses the judgment, but I write specially to comment upon its citation to Bearden v. Coker, 121 So.3d 359, 364 (Ala. Civ. App. 2012), for the following proposition:

"When a plaintiff presents evidence to the trial court in opposition to a defendant's motion to dismiss and the trial court does not specifically exclude that evidence, we must assume that the trial court considered that evidence in ruling on the motion, which automatically converts the motion to dismiss into a summary-judgment motion, and we must review the trial court's judgment granting that motion under the standard of review applicable to a summary judgment."

I note simply that the potency of that proposition appears to have been diminished in light of our supreme court's decision in Ex parte Price, 244 So.3d 949, 954-55 (Ala. 2017), in which the majority stated:

"It is true that this Court also has stated that, 'unless the trial court expressly declines to consider the extraneous material, its conclusions may be construed to include the extraneous material.' Phillips v. AmSouth Bank, 833 So.2d 29, 31 (Ala. 2002) (emphasis on 'may' added). The Phillips Court did not state, however, that this Court must presume that a trial court considered extraneous materials submitted with a motion, thereby putting the trial court in error. ... Whether additional materials attached to a Rule 12(b)(6) [, Ala. R. Civ. P.,] motion will be considered is within the trial court's discretion."

Although I find persuasive the points raised by Justices Shaw and Bryan in their dissents from the majority's conclusion on this issue in Price,see id. at 960-62 and 962-64 (Shaw, J., dissenting and Bryan, J., dissenting), I conclude that this appeal presents no cause for such debate.

At the circuit court's February 28, 2017, hearing regarding the Farrows' motion to dismiss, the circuit-court judge clearly considered all arguments and materials presented by the parties, including what effect Treadwell's affidavit should have upon the outcome of her action, even remarking "I want to chew this cabbage again" after hearing the argument regarding the substance of Treadwell's affidavit. Thus, there is no question that the averments set forth in Treadwell's affidavit were considered by the circuit court in granting the Farrows' motion to dismiss. I therefore agree with the main opinion's decision to view the circuit court's judgment as a summary judgment, and I concur in the decision to reverse the judgment and to remand the cause for the reasons stated therein.

Donaldson, J., concurs.

      On appeal, the parties have not addressed Treadwell's unjust-enrichment claim, the statute of limitations applicable to that claim, or the propriety of the judgment as to that claim.

      This court affirmed the judgment in that case, without issuing a written opinion. See Jones v. Farrow, 217 So.3d 841 (Ala. Civ. App. 2015).


source: Caselaw Access Project

license: Public Domain

text:
    EX PARTE ALABAMA STATE BOARD OF PHARMACY
    (In re: Demetrius Yvonne Parks et al. v. Alabama State Board of Pharmacy)
    2160988
    Court of Civil Appeals of Alabama.
    October 27, 2017
    James S. Ward of Ward & Cooper, LLC, Birmingham, for petitioner.
    Julian McPhillips of McPhilllips Shinbaum, L.L.P., Montgomery; and Tanika L. Finney, Montgomery, for respondent.
   THOMPSON, Presiding Judge.

This is the second time that the Alabama State Board of Pharmacy ("the board") has filed a petition for a writ of mandamus in connection with stay orders issued by the Montgomery Circuit Court ("the circuit court") in this matter involving judicial review of the board's decision to suspend Demetrius Yvonne Parks's license to practice pharmacy and to place certain pharmacies that Parks owns on probation. In the previous mandamus proceeding, the board had asked this court to vacate an "order supplementing stay on a temporary basis" ("the first supplemental order"). Ex parte Alabama State Board of Pharmacy, 240 So.3d 594 (Ala. Civ. App. 2017). In that case, we set forth the following relevant procedural history:

"On October 1, 2016, after a hearing on 46 counts alleging various improper practices, the board entered an order suspending Parks's license for 5 years and levying an administrative fine against her in the amount of $27,000. The board also placed the pharmacy permits of two of Parks's pharmacies-Parks Pharmacy # 2 and Parks Pharmacy # 4-on probation for five years. Those two pharmacies, as well as one other pharmacy Parks owned (hereinafter referred to collectively as 'the pharmacies'), were also ordered to pay administrative fines.
"On November 22, 2016, Parks and the pharmacies filed a complaint in the circuit court seeking judicial review of the board's decision. That same day, they also filed a motion to stay the board's decision pending the outcome of the judicial review. A hearing on the stay motion was scheduled for November 30, 2016. On November 28, 2016, two days before the scheduled hearing, Parks and the pharmacies filed an emergency motion to stay....
"....
"... On December 1, 2016, the circuit court entered an order staying the suspension of Parks's license subject to her compliance with specific enumerated terms, including that Parks 'shall not be involved in the dispensing of legend or controlled drugs.' Parks Pharmacy # 4 was also directed to hire a supervising pharmacist, who had to be approved by the board, and to make certain records available to the board upon its request.
"On December 14, 2016, two weeks after the stay order was entered, Parks and the pharmacies filed an 'emergency supplemental motion to stay' in which they sought the removal of language from a Web site of the National Practitioner Data Bank ('the NPDB') relating 'to the original suspension, now stayed.' ...
"The hearing on the December 14, 2016, motion was originally scheduled for December 27, 2016. On December 27, 2016, the circuit court entered an order resetting the hearing for January 5, 2017. On January 3, 2017, the circuit court entered another order granting the board's motion to continue the scheduled January 5, 2017, hearing. The order stated that the hearing 'will be reset.' ...
"Although the circuit court had continued the January 5, 2017, hearing, it also entered an order that day supplementing the stay 'on a temporary basis.' In the supplemental order, the circuit court stated that,
" 'because this matter had to [be] continued for various reasons, and deeming the relief requested to be in order, [the stay order] is hereby modified as follows ...
" '1. [Parks], whose suspension was lifted by this court's order of December 1, 2016, is hereby allowed to work as a pharmacist until further order of this court.
" '2. [The board] is hereby ORDERED to immediately clear and remove all language in its entirety sent to the [NPDB] concerning [the pharmacies] and [Parks] herself.' "

Ex parte Alabama State Bd. of Pharmacy, 240 So.3d at 595-97 (footnote omitted).

In its first mandamus petition ("the first petition"), the board argued that § 41-22-20(c), Ala. Code 1975, part of the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala. Code 1975, required the circuit court to allow the board to present evidence in connection with Parks's request for a change in conditions related to the stay entered in the December 1, 2016, order. This court agreed, and, citing § 41-22-20(c), concluded that the circuit court had erred in entering the first supplemental order, which essentially removed the conditions of the stay that had been included in the December 1, 2016, stay order, without first giving the board the opportunity to challenge the relief Parks sought in her supplemental motion for a stay. Among other things, this court concluded that the circuit court had erred in not allowing "the board to present evidence or arguments regarding the propriety of its decision to direct the board to delete language from the federal NPDB Web site." Ex parte Alabama State Bd. of Pharmacy, 240 So.3d at 599. We issued a writ of mandamus directing the circuit court to vacate the first supplemental order and "to hold a hearing so that the parties can present their evidence and arguments regarding the relief Parks has requested in her emergency supplemental motion for a stay." 240 So.3d at 599.

On August 8, 2017, the circuit court held the hearing as directed. On August 22, 2017, the circuit court entered an order again staying the suspension of Parks's license ("the second supplemental order") pending a final hearing of her petition for judicial review. However, in the second supplemental order, the conditions that had been imposed on Parks in the December 1, 2016, stay order were modified. In entering the second supplemental order, the circuit court determined, among other things, that Parks "shall be allowed to work during the duration of the stay as a supervising pharmacist" and that the board "shall submit a Void Report per the NPDB Guidebook, to remove all negative information on the NPDB website about Parks Pharmacies being on probation and about Ms. Parks ever being suspended." According to the NPDB Guidebook, a "void report" is "the withdrawal of a report in its entirety. NPDB Guidebook at E-8 (April 2015). Void reports are discussed in more depth later in this opinion. The second supplemental order also required the board to remove the same information from its own Web site. On September 12, 2017, the board filed its second petition for a writ of mandamus ("the second petition") in connection with this matter. In the second petition, the board asks this court to direct the circuit court to "rescind" the second supplemental order entered on August 22, 2017, and to order the parties to abide by the original stay order, to which their counsel had agreed, entered on December 1, 2016.

We first address Parks's contention in her motion to dismiss that the second petition is "exceedingly repetitious" of the first and is, therefore, due to be dismissed. Parks contends that the second petition "reflects a flagrant disregard of the p[r]erogatives and rights" of the circuit court and, she says, "amounts to an improper collateral attack" on the second supplemental order. In her motion and amended motion to dismiss, Parks cites no relevant authority to support those contentions.

As we wrote in Ex parte Alabama State Board of Pharmacy, 240 So.3d at 597, a petition for a writ of mandamus is the proper vehicle for seeking a review of an order staying the suspension of a professional license during the judicial review of the licensing agency's decision. See Ex parte Alabama Dep't of Mental Health, 207 So.3d 743, 753 (Ala. Civ. App. 2016) ; Ex parte Medical Licensure Comm'n of Alabama, 13 So.3d 397, 401 (Ala. Civ. App. 2008). In addressing the board's first petition, this court did not reach the substantive merits of the first supplemental order because we concluded that the board had not had an opportunity to challenge the grounds Parks had asserted in requesting additional relief. In other words, the first petition was decided solely on procedural grounds. See generally Ex parte Alabama State Bd. of Pharmacy. The circuit court held a hearing as directed by this court in Ex parte Alabama State Board of Pharmacy and then entered the second supplemental order, which substantially modified the conditions that were placed on the stay entered on December 1, 2016.

The board now seeks a substantive review of the merits of that order. Specifically, the board challenges the provision in that order directing it to "void" the report made to the NPDB-an issue this court could not address in the first petition because no hearing had been held and no record developed as to that issue. Now, for the first time, the court can conduct a meaningful review of the issue presented in the second petition. Therefore, we conclude that there is nothing improper in the board's decision to seek review of the merits of the second supplemental order, and Parks's motions to dismiss are denied. We note that, after Parks filed the motion to dismiss in response to the second petition, this court called for her to answer the petition. Instead of providing this court with an answer responding to the issues presented in the second petition, Parks chose to file an amended motion to dismiss. Parks has not addressed the substantive issues raised in the board's petition.

Turning to the merits of the board's second petition, our standard is well settled.

" '[Our appellate courts have] consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court's jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala. 1997). Because mandamus is an extraordinary remedy, the standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly abused its discretion. See Ex parte Rudolph, 515 So.2d 704, 706 (Ala. 1987).'
" Ex parte Flint Constr. Co., 775 So.2d [805,] 808 [ (Ala. 2000) ]."

Ex parte Alabama Dep't of Human Res., 227 So.3d 519, 521 (Ala. Civ. App. 2017).

In support of the second petition, the board contends that the circuit court did not have the jurisdiction or the authority to order it to file a "void" report to the NPDB. The board asserts that, under federal law and federal regulations, it is required to report the disciplinary action it took against Parks, i.e., that it suspended her license, and the pharmacies. Parks argued to the circuit court that pharmaceutical suppliers were refusing to do business with her based on the information the board had submitted to the NPDB; she presented no evidence such as letters or affidavits to support her contention, however. Therefore, she argued, the board should be required to have that information removed or voided from the NPDB until the judicial review of the suspension of her license was completed.

In conjunction with the Social Security Act, Congress enacted the Health Care Quality Improvement Act of 1986 ("HCQIA"), 42 U.S.C. 11101 et seq., part of which requires a state to

"have in effect a system of reporting the following information with respect to formal proceedings (as defined by the Secretary in regulations) concluded against a health care practitioner or entity by a State licensing or certification agency:
"(i) Any adverse action taken by such licensing authority as a result of the proceeding, including any revocation or suspension of a license (and the length of any such suspension), reprimand, censure, or probation."

42 U.S.C. § 1396r-2(a)(1)(A).

A "formal proceeding" is defined in the regulations promulgated pursuant to the HCQIA as "a proceeding held before a state licensing or certification authority, peer review organization, or private accreditation entity that maintains defined rules, policies, or procedures for such a proceeding." 45 C.F.R. § 60.3. There is no dispute that pharmacists and pharmacies are included within the definition of a "health care practitioner or entity" as to whom adverse actions such as suspensions of licences or probation must be reported. There also is no dispute that the board is required to report such adverse actions to the NPDB. The issue before us is whether the board is required to report to the NPDB its decision to suspend Parks's license and to place the pharmacies at issue on probation while a stay is in place pending judicial review of that decision.

Federal regulations mandate that the information required when an adverse action is taken against health-care practitioners and entities such as Parks and the pharmacies must be submitted to the NPDB within 30 days of the action to be reported. 45 C.F.R. § 60.5. The regulations further require that

"[a]n individual or entity which reports information on licensure or certification ... [or] civil or administrative judgments ... must also report any revision of the action originally reported. Revisions include, but are not limited to, reversal of a professional review action or reinstatement of a license. In the case of actions reported [when a licensing entity takes action after a formal proceeding,] revisions also include whether an action is on appeal."

45 C.F.R. § 60.6(b). Reporting of revisions is subject to the same time constraints as set forth in 45 C.F.R. § 60.5.

The regulations provide that the subject of the report to the NPDB will be provided with a copy of that report and may either accept it, provide a statement to the NPDB that will be permanently appended to the report, or follow the dispute process set forth in 45 C.F.R. § 60.21. There is no suggestion in the materials before us that Parks or the pharmacies availed themselves of the opportunity to respond to the information submitted to the NPDB as provided by 45 C.F.R. § 60.21.

This court's research has revealed no authority that would exempt the board from these mandatory reporting requirements. Nonetheless, the circuit court ordered the board to "void" its report to the NPDB. According to the NPDB Guidebook, upon which it appears the circuit court relied in ordering the board to "void" its report, a "void" report "is the withdrawal of a report in its entirety." NPDB Guidebook, at E-8 (April 2015). The guidebook states that the three reasons for voiding a report are:

"• The report was submitted in error
"• The action was not reportable because it did not meet NPDB reporting requirements "• The action was overturned on appeal."

Id. The guidebook provides the following example of when a void report should be submitted.

"Example: A State medical board submits an Initial Report to the NPDB when it revokes a physician's license. Six months later, the revocation is overturned by a State court. The State medical board must void the Initial Report."

Id. The information contained in the guidebook suggests that a reporting entity, in this case the board, is still required to make an initial report of an adverse action even when the health-care practitioner or entity who is the subject of the report has appealed from that action. If the adverse action is overturned on appeal, then the reporting entity is required to make a second report notifying the NPDB of the outcome.

The board argues that the applicable federal law preempts the circuit court's attempt to order the removal of the language submitted to the NPDB providing notice of the suspension of Parks's license and of the pharmacies' probation. "A state-law action is preempted under the Supremacy Clause of the federal Constitution if the intent of Congress to preempt state law is clear and explicit in the statute. English v. General Elec. Co., 496 U.S. 72, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)." Norfolk S. Ry. Co. v. Goldthwaite, 176 So.3d 1209, 1213 (Ala. 2015) (footnote omitted).

" 'The principles governing the circumstances under which preemption may arise ... may be summarized as follows: first, when acting within constitutional limits, Congress has expressly stated an intention to preempt there is preemption; second, though it has not expressly preempted a field or an identifiable portion thereof, preemption exists if Congress has adopted a "scheme of federal regulation ... sufficiently comprehensive to make reasonable the inference that Congress left no room ... for supplementary state regulation;" and finally, "where the field is one in which 'the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,' " or "when 'compliance with both federal and state regulation is a physical impossibility,' " there will be preemption. [ Hillsborough County v. Automated Medical Laboratories, 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714, 721 (1985) ]. In applying these principles, though, it is important to bear in mind that "where the state's police power is involved, preemption will not be presumed." Chrysler Corp. v. Rhodes, 416 F.2d 319, 324, n. 8 (1st Cir. 1969).'
" Specialized Carriers & Rigging Ass'n v. Virginia, 795 F.2d 1152, 1155 (4th Cir. 1986)."

Dixon v. Hot Shot Express, Inc., 44 So.3d 1082, 1088-89 (Ala. 2010) (emphasis omitted).

In Ming Wei Liu v. Board of Trustees of University of Alabama, 330 F.App'x 775, 779 (11th Cir. 2009), the United States Court of Appeals for the Eleventh Circuit discussed Congressional intent in enacting the HCQIA, of which the reporting requirements of the NPDB are a part, writing:

"Congress enacted the HCQIA to address the rising problem of medical malpractice and the ability of incompetent [health-care practitioners] to move between states without having their prior practice records follow them and to create a presumptive immunity from monetary damages awarded against participants in the peer review process. 42 U.S.C. §§ 11101 - 11111."

(Footnote omitted.) The underlying purposes of the HCQIA are to prevent malpractice, to improve the quality of health care, and to "restrict the ability of incompetent [health-care practitioners] to move from State to State without disclosure or discovery of the [health-care practitioner]'s previous damaging or incompetent performance" through effective professional peer reviews that are reportable to a national data bank. 42 U.S.C. § 11101(2). "To address the latter issue, Congress created the NPDB, a national repository of information with the primary purpose of facilitating a comprehensive review of physicians' and other health care practitioners' professional credentials. National Practitioner Data Bank Guidebook, at E-1 (September 2001)." Diaz v. Provena Hosps., 352 Ill.App.3d 1165, 1167, 288 Ill.Dec. 81, 84, 817 N.E.2d 206, 209 (2004) ; see also note 2, supra. Eligible entities may consult the NPDB to obtain information about a particular health-care practitioner; however, entities such as the suppliers to Parks and the pharmacies are not among those who have access to the NPDB.

In Diaz, supra, a state trial court held a hospital in contempt for its failure to retract a report it had made to the NPDB regarding a certain physician who had failed to renew her hospital privileges. Diaz, 352 Ill. App. at 1167, 288 Ill.Dec. at 83, 817 N.E.2d at 208. As in this case, the state trial court ordered the hospital to submit a "void" report to retract the previously filed report. The hospital did not comply with the state trial court's order, and the state trial court held the hospital in indirect contempt. The hospital appealed, arguing, among other things, that federal law required it to report the physician's failure to renew her privileges while a peer-review investigation was pending. It also filed a motion to stay the contempt order. Id.

The Appellate Court of Illinois considered the issue of whether the state trial court's orders were preempted by federal law. 352 Ill. App. 3d at 1171-73, 288 Ill.Dec. at 87-88, 817 N.E.2d at 212-13. In finding that those orders were preempted, the Illinois court explained that

"the trial court's orders requiring the Hospital to submit a void report would impede the accomplishment of Congress's objectives in enacting the HCQIA. The HCQIA is intended to protect patients, not doctors. See Brown v. Medical College of Ohio, 79 F.Supp.2d 840, 845 (N.D. Ohio 1999). The NPDB is a source of information for hospitals, licensing boards, and other health care entities. Congress has determined that it is important for these entities to have access to data regarding physicians' surrender of privileges while investigations are pending, in order to protect the health and safety of patients by preventing incompetent physicians from continuing to practice without any record of past problems. Moreover, Congress has implemented a comprehensive regulatory scheme in order to effectuate these goals. By requiring the Hospital to retract a report that it was required to make under the HCQIA, the trial court directly thwarts Congress's objectives in enacting the HCQIA. Thus, the orders at issue are preempted by federal law."

352 Ill.App.3d at 1172-73, 288 Ill.Dec. at 88, 817 N.E.2d at 213 (emphasis added). Cf. Doe v. Community Med. Ctr., Inc., 353 Mont. 378, 388, 221 P.3d 651, 660 (2009) (declining to follow the preemption rationale in Diaz because the parties failed to present a specific legal argument urging the Montana court to do so and because the court had not been presented with evidence "of an express declaration in the HCQIA of its intent to preempt state law").

In Brown v. Medical College of Ohio, 79 F.Supp.2d 840, 843 (N.D. Ohio 1999), which the Diaz court mentioned, a physician brought an action seeking an injunction prohibiting a hospital from reporting his resignation to the NPDB until the completion of the "professional review action process." The federal district court for the Northern District of Ohio stated that the regulations accompanying the HCQIA set out a comprehensive administrative scheme for challenging the accuracy of a report made to the NPDB. See 45 C.F.R. § 60.21. It added that

"[a]llowing a physician to bypass the administrative procedure simply by choosing to sue the reporting entity could 'induce frequent and deliberative flouting of administrative processes, thereby undermining the scheme of decisionmaking that Congress has created' under the HCQIA. See McGee v. United States, 402 U.S. 479, 484, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971)."

Brown v. Medical Coll. of Ohio, 79 F.Supp.2d at 845. Thus, Brown, too, recognizes that reporting adverse actions against health-care practitioners is part of a "comprehensive" legislative scheme that Congress passed with the goal of improving medical care, a component of which is to restrict incompetent health-care providers from being able "to move from state to state without disclosure or discovery of their previous incompetent performance." Diaz, 352 Ill. App. 3d at 1167, 288 Ill.Dec. at 84, 817 N.E.2d at 209.

In this case, the circuit court's order directing the board to "void" the report it submitted to the NPDB necessarily requires the board to violate its mandatory obligations under federal law to report the suspension of Parks's license and the placing of the pharmacies on probation within 30 days. Moreover, the circuit court's order impedes the accomplishment of Congress's objectives in enacting the HCQIA and the legislative scheme Congress developed to carry out those objectives. Therefore, we agree with the Illinois appellate court's rationale in Diaz that, in the face of such a conflict, federal law preempts the circuit court's order.

Within its argument regarding the circuit court's ability to require the board to submit a void report to the NPDB, the board contends that, pursuant to § 41-22-20(c), Ala. Code 1975, a "right" to a stay is conditioned on the circuit court's determination that "a stay would not constitute a danger to the public health, safety, or welfare." It is unclear from the second petition whether the board intended to make a separate argument, apart from its reporting-requirement argument, regarding the propriety of the granting of the stay of the suspension of Parks's license or the probation of the pharmacies.

Out of an abundance of caution, we will treat the board's assertion as a separate argument. The board states that "an agency can rebut the presumption of § 41-22-20(c) that a stay will not be detrimental to the public by establishing a stay would constitute danger to the public." It appears that the board's argument, if any, is that because five pharmacists "obviously determined that Ms. Parks was a danger by suspending her license," the stay was not warranted. However, in reviewing the transcript of the hearing, and recognizing that the board had agreed to the stay, albeit with certain conditions, that was entered in the December 1, 2016, stay order, we conclude that the board failed to overcome the presumption that a stay will not be detrimental. The board appears to rely on the findings of the board in deciding to suspend Parks's license, and it did not present evidence to demonstrate how the public would be placed in danger if the stay were allowed to go forward.

Moreover, as part of its argument regarding the circuit court's lack of authority to order the board to submit a void report, the board conceded that "the only authority the circuit court possesses is to order the Board not to enforce the suspension of Ms. Parks from practicing pharmacy." To the extent that the board challenges the circuit court's stay of the suspension of Parks's license, based on the materials before us, we cannot say that the board has shown that the circuit court abused its discretion in entering the stay of the suspension of Parks's license or of the order placing the pharmacies on probation.

For the reasons set forth above, we hold that the circuit court exceeded its authority in directing the board to submit a "void" report to the NPDB or to otherwise have deleted the language it had already submitted reporting that Parks's license had been suspended and that the pharmacies had been placed on probation. Accordingly, the petition for a writ of mandamus is due to be granted. The circuit court is directed to vacate the second supplemental order and enter an order consistent with this opinion.

PETITION GRANTED; WRIT ISSUED.

Pittman, Thomas, and Donaldson, JJ., concur.

Moore, J., concurs in the result, without writing.

      In this opinion, we use the same defined terms and designations we used in this excerpt from Ex parte Alabama State Board of Pharmacy.

      According to the NPDB Guidebook, promulgated by the United States Department of Health and Human Services, a copy of which is included in the materials before us, the NPDB "is a confidential information clearinghouse created by Congress to improve health care quality, protect the public, and reduce health care fraud and abuse in the U.S." (Emphasis added.)

      The United States Department of Health and Human Services, under whose auspices the NPDB is administered, filed a brief in support of the hospital as an amicus curiae in Diaz.


author: PER CURIAM.

text:
    IN RE: AMENDMENTS TO the FLORIDA PROBATE RULES-2018 FAST-TRACK REPORT.
    No. SC18-1459
    Supreme Court of Florida.
    September 27, 2018
    Theodore Stanley Kypreos, Co-Chair, Florida Probate Rules Committee, West Palm Beach, Florida; Cristina Papanikos, Co-Chair, Florida Probate Rules Committee, Miami, Florida; and Joshua E. Doyle, Executive Director, and Heather Savage Telfer, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner
   PER CURIAM.

In response to recent legislation, The Florida Bar's Probate Rules Committee (Committee) has filed an out-of-cycle, fast-track report proposing amendments to Florida Probate Rule 5.025 (Adversary Proceedings). We have jurisdiction and adopt the amendments as proposed.

The proposed amendments address the enactment of section 825.1035, Florida Statutes (2018), in chapter 2018-100, section 2, Laws of Florida, which became effective July 1, 2018. The Executive Committee of the Board of Governors of The Florida Bar unanimously approved the Committee's proposals. The Committee did not publish the proposals before filing them with the Court. After considering the Committee's proposals and the relevant legislation, we amend the Florida Probate Rules as proposed.

We amend subdivision (a) of rule 5.025 to add proceedings for an injunction under section 825.1035 to the list of adversary proceedings. Specifically, we include "obtain an injunction or temporary injunction pursuant to section 825.1035, Florida Statutes" to the first sentence of rule 5.025(a).

Next, we amend rule 5.025(d)(1) to exclude proceedings under section 825.1035, Florida Statutes, from the formal notice requirements of rule 5.025 because section 825.1035(7) contains its own notice and service requirements. Additionally, section 825.1035(5) authorizes the issuance of temporary injunctions ex parte in certain circumstances.

Finally, we add a new revision note to rule 5.025 to detail the aforementioned amendments as well as a new statutory reference to section 825.1035, Florida Statutes.

Accordingly, the Florida Probate Rules are amended as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall take effect immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

APPENDIX

RULE 5.025. ADVERSARY PROCEEDINGS

(a) Specific Adversary Proceedings. The following are adversary proceedings unless otherwise ordered by the court: proceedings to remove a personal representative, surcharge a personal representative, remove a guardian, surcharge a guardian,obtain an injunction or temporary injunction pursuant to section 825.1035, Florida Statutes, probate a lost or destroyed will or later-discovered will, determine beneficiaries, construe a will, reform a will, modify a will, cancel a devise, partition property for the purposes of distribution, determine pretermitted status, determine pretermitted share, determine amount of elective share and contribution, and for revocation of probate of a will.

(b)-(c) [No Changes]

(d) Notice and Procedure in Adversary Proceedings.

(1) Petitioner must serve formal notice,except as provided in proceedings pursuant to section 825.1035, Florida Statutes.

(2)-(5) [No Changes]

Committee Notes

The court on its initiative or on motion of any party may order any proceeding to be adversary or nonadversary or enter any order that will avoid undue delay. The personal representative would be an interested person in all adversary proceedings. A prescribed form for the caption is provided that will facilitate the clerk's and the court's ability to segregate such adversary proceeding from other adversary proceedings and from the main probate file:

Court Case # In Re Estate of John B. Jones Julia Jones, Petitioner, v. Harold Jones, as Personal Representative, et al., Respondents.

Rule History

1975 Revision-2008 Revision [No Changes]

2011 Revision: Subdivision (a) revised to add "reform a will, modify a will" and "determine pretermitted status." Subdivision (d)(2) modified to insure that an award of attorneys' fees in a probate or guardianship proceeding follows the law and procedures established for such proceedings, rather than the law and procedures for civil proceedings. See Amendments to the Florida Family Law Rules of Procedure (Rule 12.525), 897 So.2d 467 (Fla. 2005). Editorial changes to conform to the court's guidelines for rules submissions as set forth in Administrative Order AOSC06-14. CommitteeNn otes revised.

2018 Revision: Subdivisions (a) and (d)(1) amended to reference section 825.1035, Florida Statutes. Committee notes revised.

Statutory References

§ 393.12, Fla. Stat. Capacity; appointment of guardian advocate.

§§ 732.201-732.2155, Fla. Stat. Elective share of surviving spouse.

§ 732.301, Fla. Stat. Pretermitted spouse.

§ 732.302, Fla. Stat. Pretermitted children.

§ 732.507, Fla. Stat. Effect of subsequent marriage, birth, adoption, or dissolution of marriage.

§§ 732.6005-732.611, Fla. Stat. Rules of construction.

§ 732.615, Fla. Stat. Reformation to correct mistakes.

§ 732.616, Fla. Stat. Modification to achieve testator's tax objectives.

§ 733.105, Fla. Stat. Determination of beneficiaries.

§ 733.107, Fla. Stat. Burden of proof in contests; presumption of undue influence.

§ 733.109, Fla. Stat. Revocation of probate.

§ 733.207, Fla. Stat. Establishment and probate of lost or destroyed will.

§ 733.208, Fla. Stat. Discovery of later will.

§ 733.504, Fla. Stat. Removal of personal representative; causes for removal.

§ 733.505, Fla. Stat. Jurisdiction in removal proceedings.

§ 733.506, Fla. Stat. Proceedings for removal.

§ 733.5061, Fla. Stat. Appointment of successor upon removal.

§ 733.603, Fla. Stat. Personal representative to proceed without court order.

§ 733.609, Fla. Stat. Improper exercise of power; breach of fiduciary duty.

§ 733.619(2), (4), Fla. Stat. Individual liability of personal representative.

§ 733.814, Fla. Stat. Partition for purpose of distribution.

§ 744.3085, Fla. Stat. Guardian advocates.

§ 744.474, Fla. Stat. Reasons for removal of guardian.

§ 744.477, Fla. Stat. Proceedings for removal of a guardian.

§ 825.1035, Fla. Stat. Injunction for protection against exploitation of a vulnerable adult.

Rule References [No Changes]

      See Fla. R. Jud. Admin. 2.140(e).

      See art. V, § 2(a), Fla. Const.

      See ch. 2018-100, § 6, Laws of Fla.

      All comments must be filed with the Court on or before November 26, 2018, with a certificate of service verifying that a copy has been served on Committee Co-Chair Theodore Stanley Kypreos, 505 S. Flagler Drive, Suite 1100, West Palm Beach, Florida 33401-5950, tkypreos@jonesfoster.com, and Committee Co-Chair Cristina Papanikos, 600 Brickell Avenue, Suite 3500, Miami, Florida 33131-3090, cpapanikos@gunster.com, and on the Bar Staff Liaison to the Committee, Heather Telfer, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, htelfer@floridabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Co-Chairs have until December 17, 2018, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal , Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court , Fla. Admin. Order No. AOSC17-27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


text:
    IN RE: AMENDMENTS TO THE FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS-12.905(D) AND 12.993(D).
    No. SC18-1087
    Supreme Court of Florida.
    September 27, 2018
   PER CURIAM.

Pursuant to the procedures approved in Amendments to the Florida Family Law Rules of Procedure & Family Law Forms , 810 So.2d 1, 13-14 (Fla. 2000), this Court has internally reviewed the Florida Supreme Court Approved Family Law Forms and has decided that two existing forms need to be deleted. See Fla. R. Jud. Admin. 2.140(d). Input was received from the Advisory Workgroup on the Florida Supreme Court Approved Family Law Forms, which provided valuable assistance.

We have jurisdiction, and delete forms 12.905(d) (Supplemental Petition for Temporary Modification of Parenting Issues for Child(ren) of Parent Activated, Deployed, or Temporarily Assigned to Military Service) and 12.993(d) (Supplemental Temporary Judgment Modifying Parenting Issues for Child(ren) of a Parent Activated, Deployed, or Temporarily Assigned to Military Service) in their entirety because their underlying statutory authority, section 61.13002, Florida Statutes, was repealed by chapter 2018-69, section 2, Laws of Florida, effective July 1, 2018.

Forms 12.905(d) and 12.993(d) are deleted effective immediately upon the release of this opinion. The Florida Supreme Court Approved Family Law Forms may be accessed and downloaded from the Florida State Courts' website at http://www.flcourts.org/resources-and-services/court-improvement/family-courts/family-law-forms.stml. We also direct that notice of the deletion of forms 12.905(d) and 12.993(d) be published for comment. Interested persons shall have sixty days from the date of this opinion to file comments with the Court.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

      See art. V, § 2(a), Fla. Const.

      All comments must be filed with the Court on or before November 26, 2018, with a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal , Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court , Fla. Admin. Order No. AOSC17-27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


text:
    IN RE: AMENDMENTS TO THE FLORIDA SUPREME COURT APPROVED FAMILY LAW FORMS-12.961.
    No. SC18-984
    Supreme Court of Florida.
    September 27, 2018
   PER CURIAM.

Pursuant to the procedures approved in Amendments to the Florida Family Law Rules of Procedure & Family Law Forms , 810 So.2d 1, 13-14 (Fla. 2000), this Court has internally reviewed the Florida Supreme Court Approved Family Law Forms and has decided that amendments to an existing form are needed. See Fla. R. Jud. Admin. 2.140(d). Input was received from the Advisory Workgroup on the Florida Supreme Court Approved Family Law Forms, which provided valuable assistance. We have jurisdiction, and amend form 12.961 (Notice of Hearing on Motion for Contempt/Enforcement in Support Matters) as follows.

First, in the first paragraph of the instructions to form 12.961, we replace "should" with "must" to more accurately reflect a party's obligation to coordinate with the presiding judge or hearing officer and the opposing party to set a date and time for a hearing using this form. Next, we amend the language in the instructions to the form regarding service of process, following the Fourth District Court of Appeal's opinion in Department of Revenue ex rel. Baker v. Baker , 232 So.3d 1045 (Fla. 4th DCA 2017). We remove language from the instructions requiring that the notice of hearing be personally served on the alleged contemnor, and indicate that service by mail is allowed. We retain language advising litigants that in some circumstances a court may not consider service by mail to be adequate.

The amended form is hereby adopted as set forth in the appendix to this opinion, fully engrossed. The amendments to the form shall become effective immediately upon the release of this opinion and may be accessed and downloaded from the Florida State Courts' website at http://www.flcourts.org/resources-and-services/court-improvement/family-courts/family-law-forms.stml. By adoption of the amended form, we express no opinion as to its correctness or applicability. We also direct that the amended form be published for comment. Interested persons shall have sixty days from the date of this opinion to file comments with the Court.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

APPENDIX

INSTRUCTIONS FOR FLORIDA SUPREME COURT APPROVED FAMILY LAW FORM 12.961

NOTICE OF HEARING ON MOTION FOR CONTEMPT/ENFORCEMENT IN SUPPORT MATTERS (RULE 12.615) (09/18)

When should this form be used?

Use this form anytime you have set ahearing on aMotion for Contempt/Enforcement, Florida Supreme Court Approved Family Law Form 12.960, for a support matter under rule 12.615, Florida Family Law Rules of Procedure. Before you fill out this form, you must coordinate a hearing time and date with the judge or hearing officer and the other party. If the Department of Revenue is a party to the case, you may need to schedule your hearing time with the attorney for the Department of Revenue.

If your case is to be heard by a child support enforcement hearing officer, the following information applies: A child support enforcement hearing officer is an attorney who has been appointed by administrative order of the court to take testimony and recommend decisions in cases involving the establishment, enforcement, and/or modification of child support , and the enforcement of alimony in conjunction with an ongoing child support arrearage order. If your case only involves issues pertaining to child support, you cannot object to the referral of your case to a hearing officer. If your case is going to be heard by ageneral magistrate, you should useNotice of Hearing Before General Magistrate, Florida Family Law Rules of Procedure Form 12.920(c).

This form should be typed or printed in black ink. After completing this form, you shouldfile the original with the clerk of the circuit court in the county where your case was filed and keep a copy for your records.

IMPORTANT INFORMATION REGARDING E-FILING

The Florida Rules of Judicial Administration now require that all petitions, pleadings, and documents be filed electronically except in certain circumstances.Self-represented litigants may file petitions or other pleadings or documents electronically; however, they are not required to do so. If you choose to file your pleadings or other documents electronically, you must do so in accordance with Florida Rule of Judicial Administration 2.525, and you must follow the procedures of the judicial circuit in which you file.The rules and procedures should be carefully read and followed.

What should I do next?

Instructions for Florida Supreme Court Approved Family Law Form 12.961, Notice of Hearing on Motion for Contempt/Enforcement (09/18)

A copy of a Motion and Notice of Hearing must be served in compliance with Florida Family Law Rule of Procedure 12.615 and Florida Rule of Judicial Administration 2.516. The Motion and Notice of Hearing may be served by mail if reasonably calculated to apprise the other party of the pendency of the proceeding. Please note that if notice is mailed, the court in certain circumstances may not consider mailing to be adequate notice. You may also serve the Motion and Notice of Hearing by hand delivery or personal service, or by e-mail if the other party has designated an e-mail address. This is a technical area of the law; if you have any questions about it, you should consult a lawyer. For more information on personal service, see the instructions forSummons: Personal Service on an Individual, Florida Family Law Rules of Procedure Form 12.910(a).

IMPORTANT INFORMATION REGARDING E-SERVICE ELECTION

After the initial service of process of the petition or supplemental petition by the Sheriff or certified process server, the Florida Rules of Judicial Administration now require that all documents required or permitted to be served on the other party must be served by electronic mail (e-mail) except in certain circumstances.You must strictly comply with the format requirements set forth in the Rules of Judicial Administration. If you elect to participate in electronic service, which means serving or receiving pleadings by electronic mail (e-mail), or through the Florida Courts E-Filing Portal, youmust review Florida Rule of Judicial Administration 2.516. You may find this rule at www.flcourts.org or through the link to the Rules of Judicial Administration provided under either Family Law Forms: Getting Started, or Rules of Court in the A-Z Topical Index.

SELF-REPRESENTED LITIGANTS MAY SERVE DOCUMENTS BY E-MAIL; HOWEVER, THEY ARE NOT REQUIRED TO DO SO. If a self-represented litigant elects to serve and receive documents by e-mail, the procedures must always be followed once the initial election is made.

To serve and receive documents by e-mail, you must designate your e-mail addresses by using theDesignation of Current Mailing and E-mail Address, Florida Supreme Court Approved Family Law Form 12.915, and you must provide your e-mail address on each form on which your signature appears. PleaseCAREFULLY read the rules and instructions for:Certificate of Service (General), Florida Supreme Court Approved Family Law Form 12.914;Designation of Current Mailing and E-mail Address, Florida Supreme Court Approved Family Law Form 12.915; and Florida Rule of Judicial Administration 2.516.

Where can I look for more information?

Before proceeding, you should read General Information for Self-Represented Litigants found at the beginning of these forms. For further information, see rules 12.615 and 12.941, Florida Family Law Rules of Procedure.

Special notes

An attorney who has been appointed by the court to serve as a child support enforcement hearing officer can also be appointed to serve as a general magistrate. If your case involves only child support issues, your case properly may be referred to a general magistrate acting as a child support enforcement hearing officer.

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy ofDisclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms alsomust put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

IN THE CIRCUIT COURT OF THE__________ JUDICIAL CIRCUIT, IN AND FOR ____________ COUNTY, FLORIDA Case No.: ________________ Division: ________________ ___________________________, Petitioner, and ___________________________, Respondent.

NOTICE OF HEARING ON MOTION FOR CONTEMPT/ENFORCEMENT IN SUPPORT MATTERS (RULE 12.615)

TO:{name of other party} ____________________________________________________________

There will be a hearing before _____________________{name of judge or hearing officer}, on{date} ____________________, at{time} _______ m., in room ________ of the _______________________Courthouse, on the _____ Petitioner's _____ Respondent's Motion for Contempt/Enforcement in Support Matters. ____ hour(s)/____ minutes have been reserved for this hearing.

FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD.

You are strongly urged to prepare and file a Florida Family Law Rules of Procedure Financial Affidavit, prior to the hearing, as your ability to pay is a critical issue in this contempt proceeding.

You will be provided an opportunity at the hearing to respond to allegations and questions about your present financial status.

This part is to be filled out by the court or to be filled in with information obtained from the court:

If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact:

______________________________________________________________________________________________{identify applicable court personnel by name, address, and telephone number} at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, call 711.

YOU ARE ADVISED THAT FOR THIS HEARING

a. _____ Electronic recording is provided by the court. A party may provide a court reporter at that party's expense.
b. _____ A court reporter is provided by the court.
c. _____ No electronic recording is provided by the court and the court does not provide a court reporter. A party may provide a court reporter at that party's expense.

If you are represented by an attorney or plan to retain an attorney for this matter, you should notify the attorney of this hearing.

If this matter is resolved, the moving party shall contact the judge or hearing officer's office to cancel this hearing.

I certify that a copy of this document was ____ mailed ____ faxed and mailed ____ e-mailed ____ hand delivered to the person(s) listed below on{date} ______________.

Other party or his/her attorney:

Name: ______________________________________ Address: ___________________________________ City, State, Zip: __________________________ Fax Number: ________________________________ Designated E-mail Address(es): _____________ ____________________________________________ ___________________________________ Signature of Party Printed Name: _____________________ Address: __________________________ City, State, Zip: _________________ ___________________________________ Telephone Number: _________________ Fax Number: _______________________

Designated E-mail Address(es);____
__________________________________

IF A NONLAWYER HELPED YOU FILL OUT THIS FORM, HE/SHE MUST FILL IN THE BLANKS BELOW:

[fill in all blanks] This form was prepared for the:{choose only one} ___ Petitioner ___ Respondent.

This form was completed with the assistance of:

{name of individual} _____________________________________________________________,

{name of business} _______________________________________________________________,

{address} _________________________________________________________________________,

{city} _________,{state} ____,{zip code} ______,{telephone number} ______,

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

      See art. V, § 2(a), Fla. Const.

      All comments must be filed with the Court on or before November 26, 2018, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal , Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court , Fla. Admin. Order No. AOSC17-27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.