                            STATE OF MICHIGAN

                             COURT OF APPEALS



MARY ANN LAMKIN,                                                    FOR PUBLICATION
                                                                    January 19, 2017
                 Plaintiff-Appellant,                               9:05 a.m.

v                                                                   No. 328836
                                                                    Livingston Circuit Court
HAMBURG TOWNSHIP BOARD OF                                           LC No. 15-028656-CZ
TRUSTEES and HAMBURG TOWNSHIP
ZONING ADMINISTRATOR,

                 Defendants-Appellees.


Before: RONAYNE KRAUSE, P.J., and O’CONNELL and GLEICHER, JJ.

GLEICHER, J.

        Plaintiff Mary Ann Lamkin is a resident of Hamburg Township in Livingston County.
Acting in pro per, she filed a complaint in the circuit court alleging that the Hamburg Township
zoning administrator unlawfully failed to pursue a zoning violation action against one of her
neighbors. Lamkin claims the neighbor unlawfully operates an industrial business involving
sealcoating on property zoned as waterfront-residential. She seeks an order of mandamus or,
alternatively, orders of superintending control or to show cause.

        Six days after Lamkin filed her complaint and before it was served, the circuit court sua
sponte dismissed it, invoking MCR 2.116(C)(5) (“[t]he party asserting the claim lacks the legal
capacity to sue”), and MCR 2.116(I), which permits a court to render summary disposition on the
pleadings. In a written opinion and order, the circuit court explained that Lamkin “lacks
standing to assert the claims alleged in the Complaint” as she “failed to establish that [the
neighbor’s conduct] results in special damages not common to other property owners similarly
situated.” The court opined that “[b]ecause Plaintiff lacks standing to assert the claims in her
Complaint, this Court is not required to afford Plaintiff notice or an opportunity to be heard, and
summary dismissal is appropriate under MCR 2.116(I)(1) and MCR 2.116(C)(5).”

        We agree that Lamkin’s complaint lacks any allegations of special damages. We cannot
agree that the circuit court was entitled to dismiss the complaint without affording Lamkin notice
and an opportunity to be heard. Further, dismissal on the pleadings was inappropriate under
MCR 2.112(A)(1)(a).

          We begin with the process that Lamkin and every other litigant is due. MCR 2.116(I)(1)
states:
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              If the pleadings show that a party is entitled to judgment as a matter of
       law, or if the affidavits or other proofs show that there is no genuine issue of
       material fact, the court shall render judgment without delay.

In Al-Maliki v LaGrant, 286 Mich App 483, 489; 781 NW2d 853 (2009), this Court recognized
that under MCR 2.116(I)(1), “the trial court has the authority to grant summary disposition sua
sponte[.]” We emphasized, however, that “the trial court may not do so in contravention of a
party’s due process rights.” Al-Maliki, 286 Mich App at 489.

       “[T]here can be no question that, at a minimum, due process of law requires that
deprivation of life, liberty, or property by adjudication must be preceded by notice and an
opportunity to be heard.” Bonner v City of Brighton, 495 Mich 209, 235; 848 NW2d 380 (2014).
This basic and fundamental concept indisputably applies in the context of summary proceedings;
this Court so held quite clearly in Al-Maliki. Sua sponte motions for summary disposition are
permitted under the court rules, but no exception to basic due process requirements exists in
MCR 2.116(I)(1) or elsewhere. “It is a matter of simple justice in our system for a party to be
given fair notice and an opportunity to be heard before the boom is lowered.” DKT Mem Fund
Ltd v Agency for Int’l Dev, 281 US App DC 47; 887 F2d 275, 301 n 3 (1989) (GINSBURG, J.,
concurring in part and dissenting in part).

         Federal district courts, too, may grant summary judgment sua sponte. In so doing,
however, a district court must “determine that the party against whom summary judgment is
rendered has had a full and fair opportunity to meet the proposition that there is no genuine issue
of material fact to be tried . . . .” Schwan-Stabilo Cosmetics GmbH & Co v Pacificlink Int’l
Corp, 401 F3d 28, 33 (CA 2, 2005) (quotation marks and citation omitted). This rule comports
with the United States Supreme Court’s observation in Celotex Corp v Catrett, 477 US 317, 326;
106 S Ct 2548; 91 L Ed 2d 265 (1986), that “district courts are widely acknowledged to possess
the power to enter summary judgment sua sponte, so long as the losing party was on notice that
[it] had to come forward with all of [its] evidence.” (Emphasis added.) Here, the circuit court’s
failure to notify Lamkin that it was contemplating summary disposition of her claims constitutes
a fatal procedural flaw necessitating reversal.1

        The circuit court made a second error when it granted summary disposition based on
Lamkin’s failure to plead her standing to sue. The circuit court ruled that Lamkin did not
“establish” that her neighbor’s actions resulted in special damages, and therefore that Lamkin
lacked standing to challenge the zoning administrator’s decisions. At the pleading stage,
however, Lamkin was required only to set forth “[a] statement of the facts, without repetition, on
which the pleader relies in stating the cause of action, with the specific allegations necessary
reasonably to inform the adverse party of the nature of the claims the adverse party is called
1
  Nothing in the Michigan Court Rules requires a party to file a motion for reconsideration to
preserve his or her challenge to a circuit court ruling. That Lamkin did not move for
reconsideration following the dismissal of her case has no bearing whatsoever on hear ability to
pursue a due process claim or on this Court’s ability to decide that issue. This Court has
jurisdiction of an appeal as of right filed by an aggrieved party from a final order of the circuit
court. MCR 7.203(A)(1). This Court’s appellate jurisdiction does not hinge on the denial of a
motion for reconsideration.

                                               -2-
upon to defend[.]” MCR 2.111(B)(1). And under MCR 2.112(A)(1)(a), Lamkin simply was not
required to allege in her complaint her “capacity” to sue. This court rule recognizes that standing
to sue, for example, is a fact-bound concept more amenable to proof rather than to pleading. The
court rules invite the production of such proof by way of a motion for summary disposition
supported with facts, followed by the requisite evidentiary response.2

       The end result of the circuit court’s race to eliminate this case is that we are left with
nothing to substantively review. On remand, the circuit court must allow the parties to develop a
reviewable record before reaching a judgment, summary or otherwise.

       We vacate the order of summary disposition and remand for further proceedings
consistent with this opinion. We do not retain jurisdiction.




                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Peter D. O'Connell




2
  Even if such specificity was required under Michigan’s court rules, we observe that MCR
2.118(A)(2) instructs that leave to amend “shall be freely given when justice so requires.”
(Emphasis added.) “Leave to amend should be denied only for particularized reasons, such as
undue delay, bad faith, or dilatory motive on the movant’s part, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party, or where
amendment would be futile.” Jenks v Brown, 219 Mich App 415, 420; 557 NW2d 114 (1996).
Absent any evidence of record, it is impossible to determine at this juncture whether Lamkin can
establish special damages. Furthermore, Lamkin is entitled to contest the legal premises
underlying the court’s summary disposition order.

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