Circuit Court LC No. 15-028656-CZ
Before: Ronayne Krause, P.J., and O'Connell and Gleicher,
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
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
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).
begin with the process that Lamkin and every other litigant
is due. MCR 2.116(I)(1) states:
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.
Al-Maliki v LaGrant, 286 Mich.App. 483, 489; 781
N.W.2d 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.
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 N.W.2d 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
U.S. App DC 47; 887 F.2d 275, 301 n 3 (1989) (Ginsburg, J.,
concurring in part and dissenting in part).
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 F.3d 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 U.S. 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.
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 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.
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
vacate the order of summary disposition and remand for
further proceedings consistent with this ...