PURPOSE: This ruleprouides for disposition of a contested cake by stipulation, agreed settlement, OT by disposition in the nature of default judgment, judgment on the pleadings 01 summary judgment as required by section 536.073, RSMo (Cum. Supp. 1991). (1) Stipulation. The parties may waive hearing before the commission or consent to a finding of any fact.

1. (A) The parties may file a stipulation of facts. The parties or their attorneys shall sign the stipulation. The stipulation may include suggested conclusions of law. The stipulation shall contain sufficient facts to support the conclusions of law.
2. (B) The commission’s findings of fact and conclusions of law may incorporate the parties’ stipulation.

3. (2) Failure to Appear at Hearing.

   1. (A) If a party without the burden of proof fails to appear at hearing, the party with the burden of proof may present evidence in support of its position which shall constitute the sole widen&y basis for disposition, and the party without the burden of proof shall have waived any objection to the evidence.
   2. (B) A respondent with the burden of proof who fails to appear at hearing shall be deemed to have abandoned its argument.

4. (3) Determination on the Pleadings.

   1. (A) Any party may move for determination on the pleadings no fewer than thirty (30) days before a hearing on the complaint, or ten (IO) days after respondent files an amended answer, whichever is later. The motion shall admit, for purposes of the motion, all factual allegations of the opposing party’s pleadings

      Rebecca McDoweUCaak sacmtary at state

Chapter G-Certificate of Need Cases

and show that under the law the moving party is entitled to relief.

1. (B) The commission shall give the opposing party a reasonable time within which to file suggestions in opposition to the motion. If the opposing party amends its pleadings in response to the motion, it shall accompany the amended pleadings by suggestions showing how the pleadings? as amended, cure the deficiencies alleged m the motion for determination on the pleadings.
2. (C) A party may file, with the commission’s leave, further written arguments. If a party presents matters outside of the pleadings and the commission does not exclude those matters, the commission shall dispose of the motion as one for summary determination. The commission shall give all parties reasona bleopportunitytopresent allmatterspertinent to the motion. Matters which may be raised in a motion for determination on the pleadings mav include those set forth in Supreme Court Ruie 55.27(a).
3. (D) The provisions of 1 CSR 1E whether the commission will hear oral argument or evidence on the motion.

1. (4) Summary Determination. ..,_

   1. (A) For Petitioner. Petitioner may move for a summary determination on all or any part of the complaint after the time has passed for the committee to file a responsive pleading or in response to this motion filed by the committee.
   2. (B) For the Committee. The committee may move for a summary determination on all OI any part of the complaint.
   3. (C) Motion and Proceedings. The movant shallservethemotionforsummarydetermination upon an adverse party no fewer than thirty (30) days before the time fixed for hearing on the complaint. The opposing party may serve opposing affidavits before the day of any hearing on the motion. The commission shall grant the motion if the pleadings and evidence on file show that there is no genuine issue as to any material fact and that any party is entitled to relief as a matter of law as to all or any part of the complaint. The commission may order summary determination against the moving party.
   4. (D) Case Not Fully Adjudicated on Motion. Ifthecommissiongrantsthemotion, butnotae to the entire complaint, it shall issue an order finding facts. Those facts shall be established for purposes of the hearing on the complaint.

   5. (E) Form of Affidavits-Further Testimony. A party tiling a motion under this section may filewithorwithout affidavits.Thecommission may permit a party to supplement 01 oppose ., affidavits by depositions or further affidavits. Affidavits filed, by any party shall be made on personal knowledge, shall setforthfacts which would be admissible in evidence and shall

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show affirmatively that the affiant is competent to testify to the matters stated. The affiant shall attach sworn or certified copies of all documents referred to in the affidavit. (F) Defense Required. When a party supports a motion under this section with affidavits or other evidence, an adverse party shall not rest upon the mere allegations or denial of its own pleadings. The adverse party’s response shall set forth specific facts showing that there is a genuine issue of material fact for hearing and support these facts by affidavit or other evidence. If the adverse party does not so respond, the commission shall enter summary determination, if appropriate, against it. (G) The provisions of 1 CSR 155.480 govern whether the commission wil! hear oral argument or evidence on the motion.

Auth: sections 536.073.2(2) and 621.198, RSMo (1994).* Original &T filed Aug. 5, 1991, effective Feb. 6, 1992. Amended: Filed Oct. 31, 1994, effective May 28, 1995. “Original authority: 536.073, RSMo (1957J, amended 1985,1989 and 621.198, RSMo (19651, amended 1978.

1 CSR 156.470 Prehearing Conferences

PURPOSE: This rule describes the settingand subject matteroftheprehearing conference.

On its own motion or that of any party, the commission may order a prehearing con. ference to discuss matters pertinent to the action. All parties or their legal counsel shall attend the prehearing conference and be prepared to discuss the matters.

Auth: section 621.198, RSMo (1986).* Original rule filed Aug. 5,1991, effective Feb. 6,1992. *Original authority 1965, amended 1978.