Tenn. Comp. R. & Regs. 1360-04-01-.05 - COMMENCEMENT OF CONTESTED CASE PROCEEDINGS
(1) Commencement of
Action - A contested case proceeding may be commenced by original agency or
public action, by appeal of a person from an agency action, by request for
hearing by an affected person, or by any other lawful procedure.
(2) Notice of Hearing - In every contested
case, a notice of hearing shall be issued, filed, and served by the agency,
which notice shall comply with T.C.A. § 4-5-307(b). When an administrative
judge from the Administrative Procedures Division will be utilized, a contested
case is commenced with the Administrative Procedures Division by the agency's
filing of a notice of hearing, or similar document otherwise provided by law.
If the law otherwise provides, a non-agency person or other entity may file the
notice of hearing in order to commence a contested case proceeding with the
Administrative Procedures Division.
(3) Supplemented Notice - In the event it is
impractical or impossible to include in one document every element required for
notice, elements such as time and place of hearing may be supplemented in later
writings. In certain cases, some requirements of this subsection may be
satisfied during the course of a pre-hearing conference.
(4) Filing of Documents - When a contested
case proceeding is commenced with the Administrative Procedures Division, the
agency shall file with the Administrative Procedures Division a notice of
hearing along with all of the papers that are relevant to the notice of
hearing, such as pleadings, motions, and objections, formal or otherwise, that
have been provided to or generated by the agency.
(5) Answer - A responding party may file an
answer, or the administrative judge may require a responding party to file an
answer, to the charges set out in the notice of hearing or other initial
pleading. The responding party should file its answer with the Administrative
Procedures Division if the Administrative Procedures Division will be
conducting the proceedings, or the agency in cases when the agency is
conducting the proceedings, in which the party may:
(a) Object to the notice upon the ground that
it does not state acts or omissions upon which the agency may
proceed;
(b) Object on the basis of
lack of jurisdiction over the subject matter;
(c) Object on the basis of lack of
jurisdiction over the person;
(d)
Object on the basis of insufficiency of the notice;
(e) Object on the basis of insufficiency of
service of the notice;
(f) Object
on the basis of failure to join an indispensable party;
(g) Generally deny all the allegations
contained in the notice or state that the responding party is without knowledge
to each and every allegation, both of which shall be deemed a general denial of
all charges;
(h) Admit in part or
deny in part allegations in the notice and may elaborate on or explain relevant
issues of fact in a manner that will simplify the ultimate issues;
and
(i) Assert any available
defense.
(6) Motion for
More Definite Statement - Within two (2) weeks after service of the notice of
hearing in a matter, or at any later time with the permission of the
administrative judge for good cause shown, a party may file a motion for more
definite statement pursuant to T.C.A. § 4-5-307 on the ground that the
notice or other original pleading is so indefinite or uncertain that one cannot
identify the transaction or facts at issue or prepare a defense. The
administrative judge may order a more definite statement to be provided by a
date certain and may continue the hearing until at least ten (10) days after a
more definite statement is provided.
(7) Amendment to Notice - An amendment to the
notice of hearing or other initial pleading may be filed and served within
fifteen (15) business days from service of the initial notice and before an
answer is filed, unless a party shows to the administrative judge that undue
prejudice will result from the amendment. Such an amendment shall clearly
identify how the original pleading has been amended. Otherwise, the notice of
hearing or other initial pleading may only be amended by written consent of the
non-amending party, or parties, or by leave of the administrative judge, and
leave shall be freely given when justice so requires. No amendment may
introduce a new statutory violation without original service and running of
times applicable to service of the initial notice of hearing or other initial
pleading. The administrative judge may grant a continuance, if necessary, to
assure that a party has adequate time to prepare for a hearing in response to
an amendment.
(8) Amendments to
Conform to the Evidence - When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at any time, but
failure to so amend does not affect the result of the determination of these
issues. If evidence is objected to at the hearing on the ground that it is not
within scope of the issues contained in the pleadings, then the administrative
judge may allow the pleadings to be amended unless the objecting party shows
that the admission of such evidence would prejudice its defense. The
administrative judge may grant a continuance to enable the objecting party to
have reasonable notice of the amendments.
(9) Communications - When a contested case is
commenced in which an administrative judge from the Administrative Procedures
Division will be conducting the proceedings, the parties may not communicate
directly with the administrative judge via electronic mail unless all parties
are included as a recipient of the message or unless the communication is
otherwise authorized by T.C.A. § 4-5-304. In no event may an electronic
message between the parties and an administrative judge, or any attachment
thereto, be treated as a filing. All documents for filing must be filed in
accordance with Rule 1360-04-01-.03.
(10) Withdrawal/Nonsuit/Voluntary Dismissal -
Any petitioner seeking to voluntarily dismiss their case prior to the hearing
may do so by filing a written notice or by giving oral notice of dismissal to
the parties and the administrative judge or agency conducting the
proceedings.
Notes
Authority: T.C.A. §§ 4-5-219, 4-5-301, 4-5-307, 4-5-308, 4-5-312, 4-5-313, and 4-5-321.
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