Section 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.Tenn. Comp. R. & Regs. 1360-04-01-.05
Original rule filed November 22, 1978; effective January 8, 1979. Amendment filed May 23, 1984; effective June 22, 1984. Repeal and new rule filed November 25, 1986; effective January 9, 1987. Amendment filed May 31, 1990; effective July 15, 1990. Amendments filed January 8, 2024; effective 4/7/2024.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.