Section 38.155. Motion for summary disposition.

(1) A party seeking to recover upon a claim of appeal, or a party against whom a claim of appeal is asserted, may move for summary disposition on all or any part of the claim at any time. The motion shall state that the moving party is entitled to summary disposition on 1 or more of the following grounds and shall specify the grounds on which the motion is based:

(a)  The appellant has failed to state a claim upon  which relief  can  be granted.

(b)   The controlling board has failed to state a valid defense to the claim asserted against it.

(c)   There is no genuine issue as to a material fact, except as to the relief to be granted, and the moving party is therefore entitled to judgment as a matter of law.

(d)  The commission lacks jurisdiction of the subject matter.

(e)   The claim of appeal is barred because it is untimely.

(f)   The claim of appeal is barred because of some other disability of the appellant or other disposition of the claim.

(2) Only the pleadings may be considered when the motion for summary disposition is based on subrule (1) (a) or (b) of this rule.  A motion  based upon subrule

(1)    (c) of this rule shall be supported by affidavits and shall specifically identify the issues as to which the moving party believes there is no genuine issue of material fact. The affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, shall be considered. If a motion is made under subrule (1) (c) of this rule and supported as provided in this rule, then an adverse party may not rest upon the mere allegation or denial of the pleading, but shall, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there  is   a  genuine  issue  for hearing.  If the adverse party does not

respond, then summary disposition, if appropriate, shall be entered. Summary disposition shall be entered if the pleadings show that a party is entitled to summary disposition as a matter of law or if the affidavits or other proof shows that there is no genuine issue of fact.If it appears that the opposing party, rather than the moving party, is entitled to summary disposition, the administrative law judge may render summary disposition in the opposing party's favor without a motion.

(3)    The administrative law judge may order an immediate hearing on disputed questions of fact and enter a summary disposition if the proofs show that the moving party is entitled to summary disposition or the administrative law judge may postpone the hearing until the merits are heard.

(4)   If the grounds asserted for summary disposition are based  on  subrule

(1)(a),(b), or (c) of this rule, then the administrative law judge shall give the parties an opportunity to amend their pleadings, unless the evidence before the administrative law judge  shows  that  amendment  would  not  be justified.

History: 1998-2000 AACS.