Default And Uncontested Proceedings

(1) Default. (a) The failure of a party to request a hearing after receiving actual service of notice of charges and opportunity for a hearing, or to attend or participate in a prehearing conference, hearing or any other stage of contested case proceedings after due notice thereof is cause for holding such party in default pursuant to Tenn. Code Ann. § 4-5- 309. Failure to comply with any lawful order of the administrative judge or Inspector General, necessary to maintain the orderly conduct of the hearing, may be deemed a failure to participate in a stage of a contested case and thereby be cause for a holding of default. (b) After entering into the record evidence of service of notice to an absent party, a motion may be made to hold the absent party in default and to adjourn the proceedings or continue on an uncontested basis. (c) Upon entry into the record evidence of service of notice of charges and opportunity for a hearing as provided in Rule 0620-4-2-.06, the Inspector General may deem the respondent(s) in default and may consider the adequacy of the pleadings and the evidence and the evidence supporting such pleadings in considering whether to issue an initial order based upon the evidence and the respondent’s failure to request a hearing. (d) The administrative judge, when sitting with the Inspector General, advises the agency whether the service of notice is sufficient as a matter of law, according to rule 0620-4- 2-.06. RULES OF PROCEDURE CHAPTER 0620-4-2 (e) If the notice is held to be adequate, the Inspector General, or administrative judge hearing a case alone, shall grant or deny the motion for default, taking into consideration the criteria listed in rule 0620-4-2- .06, where appropriate. Grounds for the granting of a default shall be stated and shall thereafter be set forth in a written order. If a default is granted, the proceedings may then be adjourned or conducted without the participation of the absent party. (f) The Inspector General or administrative judge shall serve upon all parties written notice of entry of default for failure to appear. The defaulting party, no later than fifteen (15) days after service of such notice of default, may file a motion for reconsideration under Tenn. Code Ann. § 4-5-317, requesting that the default be set aside for good cause shown, and stating the grounds relied upon. The Inspector General or administrative judge may make any order in regard to such motion as is deemed appropriate, pursuant to Tenn. Code Ann. § 4-5-317. (2) Effect of Entry of Default. (a) Upon entry into the record of the default of the petitioner at a contested case hearing, the charges shall be dismissed as to all issues on which the petitioner bears the burden of proof, unless the proceedings are adjourned. (b) Upon entry into the record of the default of the respondent at a contested case hearing, the matter shall be tried as uncontested as to such respondent, unless the proceedings are adjourned. (c) Upon the entry into the record of the default of the respondent(s) to request a hearing after being served with a notice of charges and opportunity for a hearing as provided in Rule 0620-4-2-.06, the Inspector General may issue an initial order granting or denying the relief sought in the notice of charges. The respondent(s) may seek to set aside such initial order as provided in Tenn. Code Ann. § 4-5-317. (3) Uncontested Proceeding. When a contested case hearing is tried as uncontested, the petitioner has the burden of proof of establishing affirmative allegations of a prima facie case by a preponderance of the evidence presented.