A Motion for Summary Determination may be filed no later than thirty days prior to the date a case is set for hearing. The motion may be based on supporting affidavits or other probative evidence, for summary determination in its favor on any of the issues being adjudicated on the basis that there is no genuine issue of material fact for determination. There shall be included in the motion or attached thereto a separate, short, concise and numbered statement of each of the material facts as to which the moving party contends there is no genuine issue for determination. Ga. R. & Regs. § 616-1-2-.15(1). This rule is analogous to O.C.G.A. § 9-11-56.
Each numbered material fact must be supported by a citation to evidence proving such fact. The Court will not consider any fact that
1. lacks citation to supporting evidence;
2. is stated as an issue or legal conclusion; or
3. is set out only in a brief and not in the moving party’s statement of undisputed facts.
The response to a Motion for Summary Determination is due within 20 days after the motion was served. Ga. R. & Regs. § 616-1-2-.15(2). It may include a counter-motion for summary judgment, but must include a separate and concise statement of each of the material facts as to which the party opposing summary determination contends there exists a genuine issue for determination. These facts shall be individually numbered to correspond to the numbered statement of material facts provided by the moving party. Each fact must be supported by a citation to evidence. The Court will not consider any fact that
1. lacks citation to supporting evidence;
2. is stated as an issue or legal conclusion; or
3. is set out only in a brief and not in the responding party’s statement of material facts.
If either party fails to respond, the Court may deem each of the moving party’s facts as admitted unless the responding party
1. directly refutes the moving party’s fact with a response supported by a citation to evidence, as required in subsection (2)(a) of this Rule;
2. states a valid objection to the admissibility of the moving party’s fact;
3. asserts that the moving party’s citation does not support the moving party’s fact; or
4. asserts that the moving party’s fact is not material or otherwise has failed to comply with this Rule.
Ga. R. & Regs. § 616-1-2-.15(2)(b). When a motion for summary determination is supported as provided in this Rule, a party opposing the motion may not rest upon mere allegations or denials, but must show, by affidavit or other probative evidence as required in subsection (2)(a) of this Rule, that there is a genuine issue of material fact for determination, or that the moving party is not entitled to prevail as a matter of law. Ga. R. & Regs. § 616-1-2-.15(2)(c). Failure to file a response may result in default. Ga. R. & Regs. § 616-1-2-.30(1).
Affidavits shall be made upon personal knowledge, shall set forth facts that would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all documents to which reference is made in an affidavit shall be attached thereto and served therewith. Where facts necessary for summary determination are a matter of expert opinion, such facts may be resolved on the basis of uncontroverted affidavits or testimony of expert opinion. Ga. R. & Regs. § 616-1-2-.15(3).
The ALJ may set the matter for oral argument, call for proposed findings of fact, conclusions of law, and briefs. A ruling on a motion for summary determination must be in writing. Ga. R. & Regs. § 616-1-2-.15(5). If all factual issues are decided by summary determination, the ALJ must issue an Initial or Final Decision. Ga. R. & Regs. § 616-1-2-.15(7).
If summary determination is not granted, or is granted in part, then the remaining issues should proceed to hearing. O.C.G.A. § 9-11-56(d), which applies in civil cases, indicates how that should occur: “If on motion under this Code section judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall, if practicable, ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.”
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