Section 1360-04-01-.09 - PRE-HEARING MOTIONS(1) Scope - This rule applies to all motions made prior to a hearing on the merits of a contested case, except that discovery-related motions shall not be subject to Interlocutory Review by an agency under this rule. This rule does not preclude the administrative judge from convening a hearing or converting a pre-hearing conference to a hearing at any time pursuant to T.C.A. § 4-5-306(b) to consider any question of law.(2) Motions - Parties to a contested case are encouraged to resolve matters on an informal basis; however, if efforts at informal resolutions fail, any party may request relief in the form of a motion by serving a copy on all parties and, if an administrative judge from the Administrative Procedures Division is conducting the contested case, by filing the motion with the Administrative Procedures Division. Any such motion shall set forth a request for all relief sought and shall set forth grounds that entitle the moving party to relief.(3) Time Limits; Argument - A party may request oral argument on a motion by indicating the request on the front of the motion, or any response to the motion, at the time it is filed; however, a brief memorandum of law submitted with the motion is preferable to oral argument. Each opposing party may file a written response to a motion provided the response is filed within seven (7) days of the date the motion was filed. A motion shall be considered submitted for disposition seven (7) days after it was filed unless oral argument is granted, or unless a longer or shorter time is set by the administrative judge.(4) Oral Argument - If oral argument is requested, the motion may be argued in person, by conference telephone call, or by video conference call, as determined appropriate by the administrative judge.(5) Affidavits and Briefs (a) Motions and responses thereto shall be accompanied by all supporting affidavits and briefs. All motions and responses thereto shall be supported by affidavits for facts relied upon that are not of record or that are not the subject of official notice. Such affidavits shall set forth only facts which are admissible under T.C.A. § 4-5-313, and to which the affiants are competent to testify. Properly verified copies of all documents referred to in such affidavits may be attached thereto.(b) In the discretion of the administrative judge, a party or parties may be required to submit briefs pursuant to a schedule established by the administrative judge.(6) Disposition of Motions; Drafting the Order(a) When a pre-hearing motion has been made in writing or orally, the administrative judge shall render a decision on the motion by issuing an order or by instructing the prevailing party to prepare and submit an order in accordance with subparagraph (b) below.(b) If the administrative judge instructs the prevailing party on any motion to draft an appropriate order, it shall be filed if the case is being conducted by an administrative judge from the Administrative Procedures Division, or submitted to any other administrative judge, within five (5) days of the ruling on the motion, or as otherwise ordered by the administrative judge.(c) The administrative judge, after signing any order, shall cause the order to be issued forthwith to the parties, either by mail or electronically.(7) Interlocutory Review Prior to Hearing - For cases in which an initial order will be issued pursuant to T.C.A. § 4-5-314, decisions regarding the availability of interlocutory review of an order issued on a preliminary matter shall be made, in accordance with the criteria specified in Rule 9 of the Tennessee Rules of Appellate Procedure, by the administrative judge who issued the order, upon application made by the party seeking the review. Should the request for interlocutory review be approved, the administrative judge shall specify the procedure for seeking the review, including timeframes, and shall identify the entity from whom the review should be sought. Should the reviewing entity not address the request for review within the timeframe specified by the administrative judge, the request shall be deemed denied.Tenn. Comp. R. & Regs. 1360-04-01-.09
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, 4-5-306, 4-5-308, 4-5-312, and 4-5-321.