At page 971 Mandatory notice and opportunity to respond before summary judgment68 citing cases“before summary judgment may be granted against a party, fed.r.civ.p. 56(c) mandates that the party opposing summary judgment be afforded notice and a reasonable opportunity to respond to all issues to be considered by the court.”
- Cook v. Life Credit Union, 138 F. Supp. 3d 981 (M.D. Tenn. 2015).published But see Routman, 873 F.2d at 971 .
- Cole v. Barnes, 128 F. Supp. 3d 1002 (M.D. Tenn. 2015).published But see Routman, 873 F.2d at 971 (6th Cir.1989).
- Hankins v. Transcanada USA Servs., Inc., 22 F. Supp. 3d 844 (M.D. Tenn. 2014).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Evola v. City of Franklin, 18 F. Supp. 3d 935 (M.D. Tenn. 2014).published But see Routman, 873 F.2d at 971 .
- Ferguson v. Williamson Cnty. Dep't of Emergency Commc'ns, 18 F. Supp. 3d 947 (M.D. Tenn. 2014).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- McClain v. United States, 996 F. Supp. 2d 683 (M.D. Tenn. 2014).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Molina-Parrales v. Shared Hosp. Servs. Corp., 992 F. Supp. 2d 841 (M.D. Tenn. 2014).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Equal Emp. Opportunity Comm'n v. Finish Line, Inc., 915 F. Supp. 2d 904 (M.D. Tenn. 2013).published But see Routman, 873 F.2d at 971 .
- Coffman v. Robert J. Young Co., 871 F. Supp. 2d 703 (M.D. Tenn. 2012).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Green Party of Tennessee v. Hargett, 882 F. Supp. 2d 959 (M.D. Tenn. 2012).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
Show 56 more citing cases
- Hearring v. Sliwowski, 872 F. Supp. 2d 647 (M.D. Tenn. 2012).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- US Ex Rel. Hobbs v. Medquest Assocs., Inc., 812 F. Supp. 2d 821 (M.D. Tenn. 2011).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Rock v. T.N.H.D. Partners, LLC, 833 F. Supp. 2d 802 (M.D. Tenn. 2011).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Nijem v. Alsco, Inc., 796 F. Supp. 2d 883 (M.D. Tenn. 2011).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Villegas v. Metro. Gov't of Davidson Cnty., 789 F. Supp. 2d 895 (M.D. Tenn. 2011).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Libertarian Party of Tennessee v. Goins, 793 F. Supp. 2d 1064 (M.D. Tenn. 2010).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Smith v. C.R. Bard, Inc., 730 F. Supp. 2d 783 (M.D. Tenn. 2010).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989). *793 There is a certain framework in considering a summary judgment motion as to the required showing of the respective parties, as described by the Cour…
- Borescopes R US v. 1800Endoscope. Com, LLC, 728 F. Supp. 2d 938 (M.D. Tenn. 2010).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- United States Ex Rel. Wall v. Circle Constr., LLC, 700 F. Supp. 2d 926 (M.D. Tenn. 2010).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Hooper v. Adams, 700 F. Supp. 2d 942 (M.D. Tenn. 2010).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Gooch v. Life Investors Ins., 264 F.R.D. 340 (M.D. Tenn. 2009).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Carreno v. DOJI, INC., 668 F. Supp. 2d 1053 (M.D. Tenn. 2009).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Hall v. Wal-mart Stores East, LP., 637 F. Supp. 2d 588 (M.D. Tenn. 2009).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Buchanan v. Williams, 434 F. Supp. 2d 521 (M.D. Tenn. 2006).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 311 F. Supp. 2d 690 (M.D. Tenn. 2004).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Dudley's Com. & Indus. Coating, Inc. v. United States Internal Revenue Serv., 292 F. Supp. 2d 976 (M.D. Tenn. 2003).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Gibson v. City of Clarksville, Tenn., 860 F. Supp. 450 (M.D. Tenn. 1993).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir. 1989).
- Harwell v. Am. Med. Sys., Inc., 803 F. Supp. 1287 (M.D. Tenn. 1992).published But see Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Williamson v. Univ. of Louisville, No. 3:20-cv-00266 (W.D. Ky. Aug. 9, 2023).Here, Williamson was on notice by virtue of U of L’s motion for summary judgment filed on October 14, 2022 (D.N. 78), and he was provided “reasonable opportunity to respond to all issues to be considered by the [C]ourt.” Routman v. Automat…
- Mark Hiller v. HSBC Fin. Corp., 589 F. App'x 320 (6th Cir. 2015).unpublishedSee CenTra, Inc. v. Estrin, 538 F.3d 402, 419-20 (6th Cir.2008); Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971-72 (6th Cir.1989).
- Moses v. Providence Hosp. & Med. Centers, Inc., 561 F.3d 573 (6th Cir. 2009).published P. 56(c) mandates that the party opposing summary judgment be afforded notice and a reasonable opportunity to respond to all issues to be considered by the court.” Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir. 198…
- Transition Healthcare Assocs., Inc. v. Tri-State Health Investors, LLC, 306 F. App'x 273 (6th Cir. 2009).unpublished IV. “[Bjefore summary judgment may be granted against a party, Fed.R.Civ.P. 56(c) mandates that the party opposing sum- mary judgment be afforded notice and a reasonable opportunity to respond to all issues to be considered by the court.”…
- BFM Leasing Co., LLC v. Philadelphia Indem. Ins., 126 F. App'x 243 (6th Cir. 2005).unpublished Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Doyle v. City of Columbus, 120 F. App'x 560 (6th Cir. 2004).unpublishedWe have noted that “a district court does not have sweeping authority to enter summary judgment at *565 any time, without notice, against any party.” Employers Ins. of Wausau, 69 F.3d at 105 . “[B]efore summary judgment may be granted agai…
- Big Boy Restaurants v. Cadillac Coffee Co., 238 F. Supp. 2d 866 (E.D. Mich. 2002).publishedBissell, 210 F.3d at 604 , citing Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Owner-Operator Indep. Drivers Ass'n, Inc. Mark P. Nye Kenneth D. McFadden v. Keith Bissell, 210 F.3d 595 (6th Cir. 2000).published Routman [v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989) ].
- Butcher v. Gerber Prods. Co., 88 F. Supp. 2d 788 (W.D. Mich. 2000).publishedRoutman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Meeker v. Educ. Credit Mgmt. Corp. (In Re Meeker), 225 B.R. 910 (Bankr. N.D. Ohio 1998).publishedThe Sixth Circuit also recognizes this authority, but requires that the opposing party “be afforded notice and a reasonable opportunity to respond to all issues to be considered by the court.” Routman v. Automatic Data Processing, Inc., 87…
- Carol Reid v. Contel Cellular of Louisville, Inc., 96 F.3d 1448 (6th Cir. 1996).unpublishedThe Sixth Circuit recognizes this power but also requires that the opposing party "be afforded notice and a reasonable opportunity to respond to all issues to be considered by the court." Routman v. Automatic Data Processing, Inc., 873 F.2…
- Employers Ins. of Wausau, Counterclaim v. Petroleum Specialties, Inc., Counterclaim Third Party Zurich Ins. Co., Third-Party, 69 F.3d 98 (3d Cir. 1995).published Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Kathleen M. Kubicki v. Nicholas F. Brady, Sec'y, Dep't of the Treasury, 41 F.3d 1507 (6th Cir. 1994).unpublishedSee Nuclear Transp. & Storage v. United States, 890 F.2d 1348, 1351 (6th Cir.1989), cert. denied, 494 U.S. 1079 (1990); Routman v. Automatic Data Processing, 873 F.2d 970, 971 (6th Cir.1989).
- Clyde E. McGillvary Ramona J. McGillvary v. City of Troy, Ohio David McBride, 30 F.3d 134 (6th Cir. 1994).unpublished"Rather, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences agasint the party whose motion is under consideration." Taft Broadcasting Co. v. United States, 929 F.2d…
- Sharon Lee Heller v. Gene Vallelonga, 14 F.3d 601 (6th Cir. 1993).published Harrington v. Vandalia-Butler Bd. of Educ., 649 F.2d 434, 436 (6th Cir.1981); Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Ghem, Inc. v. Mapco Petroleum, Inc., 992 F.2d 1216 (6th Cir. 1993).unpublishedWe disagree. 1 8 As this court stated in Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989), "before summary judgment may be granted against a party, Fed.R.Civ.P. 56(c) mandates that the party opposing summary jud…
- Garman v. Dougherty, 991 F.2d 794 (6th Cir. 1993).unpublishedRhodes v. McDannel, 945 F.2d 117, 119 (6th Cir.1991) (per curiam), cert. denied, 112 S.Ct. 872 (1992); cf. Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971-72 (6th Cir.1989).
- Delta Gas Corp., C. Lester Paul & Margaret S. Paul v. Grover Thompson & Violet Thompson, 951 F.2d 348 (6th Cir. 1991).unpublishedRoutman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989).
- Jay D. Scott v. Bruce A. Stafford, 947 F.2d 945 (6th Cir. 1991).unpublishedRoutman v. Automatic Data Processing Inc., 873 F.2d 970, 971 (6th Cir.1989); Yashon v. Gregory, 737 F.2d 547, 552 (6th Cir.1984); Kistner v. Califano, 579 F.2d 1004, 1006 (6th Cir.1978); see also Celotex Corp. v. Catrett, 477 U.S. 317, 326…
- Norse v. City of Santa Cruz, 629 F.3d 966 (9th Cir. 2010).published
- Jackie H. Campbell, Jr. v. Luther Townley, Clinic/Hosp. Adm'r of Morgan Cnty. Reg'l Corr. Facility, 899 F.2d 1221 (6th Cir. 1990).unpublished
- Tedric Leighton Beverly v. John Gluch Mr. Garbow Mary Sauvey, Dr. Mr. Church Mr. McKutchen Carlos Doe Mark Doe George Doe Kay Barath Marshawn Doe, 902 F.2d 1568 (6th Cir. 1990).unpublished
- United States v. Currency $267,961.07, Maggie Crumpton, Guardian of Lizzie Johnson Lovy Johnson Lizzie Johnson, Claimants-Appellants, 916 F.2d 1104 (6th Cir. 1990).published
- Elvis Presley Enter., Inc. v. Elvisly Yours, Inc. Elvisly Yours, Ltd. Sid Shaw, 936 F.2d 889 (6th Cir. 1991).published
- Amanda York Beaty & Nancie York Gunter v. United States, 937 F.2d 288 (6th Cir. 1991).published
- Qualicare-Walsh, Inc. v. Ward, 947 F.2d 823 (6th Cir. 1991).published
- Roy French Keith Dahlin Wetherbee Michael Jordan Paul Johnson, Stanley Dick v. John C. Runda, 948 F.2d 1288 (6th Cir. 1991).unpublished
- Webb v. Bunch, 16 F.3d 1223 (6th Cir. 1994).published
- Goddard v. Larsen, 62 F.3d 1417 (6th Cir. 1995).unpublished
- Frederick L. Angst, Individually & on Behalf of a Class of All Others Similarly Situated v. Kentucky Cent. Life Ins. Co. William E. Burnett, Jr. Wendell L. Gunn C.R. Hembree Robert D. Preston E.F. Schaeffer, Jr. Lawrence J. Sammartin E.W. Yates & Deloitte & Touche (94-5772), & Cent. Bank & Trust Co., as Tr. of the Garvice D. Kincaid Intervivos & Testamentary Trust Garvice D. Kincaid Intervivos & Testamentary Trust Kincaid, Wilson, Schaeffer, Hembree & Kinser, P.S.C. Charles R. Hembree Edwin F. Schaeffer, Jr. & Margaret A. Burnett, of the Est. of William E. Burnett, Jr. (94-6011), 65 F.3d 168 (6th Cir. 1995).unpublished
- Doris Jacobs & Phillip Jacobs (93-4144) Patricia A. Adelmann (93-5978/6561) v. E.I. Du Pont De Nemours & Co., 67 F.3d 1219 (6th Cir. 1995).published
- Yarbrough v. Garrett, 579 F. Supp. 2d 856 (E.D. Mich. 2008).published
- Se. Mental Health Ctr., Inc. v. Pac. Ins., 439 F. Supp. 2d 831 (W.D. Tenn. 2006).published
- Boyd v. Gen. Revenue Corp., 5 F. Supp. 3d 940 (M.D. Tenn. 2013).published
- Harris v. Nationwide Mut. Fire Ins., 92 F. Supp. 3d 736 (M.D. Tenn. 2015).published
- Davis v. Marshall Cnty. Ambulance Servs., 913 F. Supp. 2d 545 (M.D. Tenn. 2012).published
- Worrall ex rel. Worrall v. Irwin, 890 F. Supp. 696 (S.D. Ohio 1994).published
- Sharon Legge David Legge (92-4155) v. Fredericka Wagner Robert Wagner Flying W Farms, Inc., Denise Visser (92-4156) v. Fredericka Wagner Robert Wagner Flying W Farms, Inc., Constance Bergendoff (92-4233) v. Fredericka Wagner Robert Wagner Flying W Farms, Inc., 7 F.3d 234 (6th Cir. 1993).unpublished
At page 972 “where a district court is contemplating entering sua sponte summary judgment against one of the parties, that party is entitled to unequivocal notice of the court's intentions.”2 citing cases
- A. Carl Helwig, on Behalf of Himself & All Others Similarly Situated Gary Barnes Meredith Wilson Brown Robert Brown S. Kay Lutes Sybil R. Meisel Barbara E. Shuster v. Vencor, Inc. W. Bruce Lunsford W. Earl Reed, III Michael R. Barr Thomas T. Ladt Jill L. Force James H. Gillenwater, Jr., 210 F.3d 612 (6th Cir. 2000).publishedIn Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 972 (6th Cir. 1989), this court held that "where a district court is contemplating entering sua sponte summary judgment against one of the parties, that party is entitled to uneq…
- Helwig v. Vencor, Inc., 210 F.3d 612 (6th Cir. 2000).publishedIn Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 972 (6th Cir.1989), this court held that “where a district court is contemplating entering sua sponte summary judgment against one of the parties, that party is entitled to unequ…
v.
AUTOMATIC DATA PROCESSING, INC. Defendant-Appellee
Plaintiff-appellant Robert Routman, d/b/a Robert Routman & Associates (Rout-man), a sole proprietorship, has appealed from an order of summary judgment in favor of defendant-appellee, Automatic Data Processing, Inc. (ADP), in an action charging ADP with breach of contract as a result of its failure to purchase “Impact 36,” a computer software system designed by appellant to specifically service the wholesale distribution data processing market.
The operative facts joining the issue confronting this appellate review were incorporated into an October 21, 1986 pretrial order entered as a result of an October 16, 1986 district court conducted conference:
The Court conducted a status call in the above-captioned case on October 16, 1986 with counsel present and participating. The plaintiff has alleged that the defendant breached a marketing agreement entered into with the plaintiff, and requests compensatory damages in the amount of $6.5 million. The Court finds that the threshold issue in the case is whether the parties entered into a marketing agreement. Accordingly, the Court extends discovery until November 30, 1986, but limits discovery to issues relating to whether the parties entered into a contract as alleged by the plaintiff.
The Court stays discovery as to all other issues. The Court grants the defendant leave until November 30, 1986 to file a motion for summary judgment on the contract formation issues.
(emphasis added).
The mandate of the trial court’s order bifurcated the trial and limited the first issue for consideration to “contract formation” and deferred consideration of the “contract breach” to an unspecified future date.
On January 15, 1987, addressing the issue of contract formation, ADP filed its motion for summary judgment denying the existence of any contract between the parties. Appellant responded to the single issue joined by appellee’s summary judg[*971] ment motion. At a hearing before the district court on ADP’s motion for summary judgment, appellee attempted to expand the issue of contract formation to include the issue of breach. Appellant objected and refused to address the question of ap-pellee’s bad faith breach of contract and insisted that the argument be confined to the existence of a valid contract because appellant had been precluded during its discovery, briefing and related preparation from pursuing its allegations of ADP’s bad faith breach of the agreement in controversy-
On April 30, 1987, the trial court, notwithstanding its bifurcation order limiting its consideration to the issue of contract formation, elected, after finding that a contract existed between the parties, to ignore its order, and proceeded sua sponte to grant summary judgment in favor of ADP, concluding that appellant had failed to support its allegations of a bad faith breach by ADP.
Appellant timely filed a motion for reconsideration pursuant to Fed.R.Civ.P. 59(e) asserting that the trial court erred by ignoring the parameters of its October 21, 1986 order confining discovery, evidence, and argument to the single issue of contract formation and by granting summary judgment in favor of ADP on the bad faith breach of contract issue. The district court denied the motion and appellant timely appealed.
On appeal, appellant has charged that the trial court offended the ten-day notice requirement of Fed.R.Civ.P. 56(c), and its own order bifurcating the trial. Appellant also argues that it was misled by the language of the pretrial order because that order limited the parties to developing only the single issue of contract formation and deferred the “breach of contract” issue until after a disposition of the contract formation issue.
A district court may properly enter summary judgment sua sponte where the record discloses the absence of an issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, before summary judgment may be granted against a party, Fed.R.Civ.P. 56(c) mandates that the party opposing summary judgment be afforded notice and a reasonable opportunity to respond to all issues to be considered by the court. Portland Retail Druggist Ass’n v. Kaiser Foundation Health Plan, 662 F.2d 641, 645 (9th Cir.1981). “Implicit in the ‘opportunity to respond’ is the requirement that sufficient time be afforded for discovery necessary to develop ‘facts essential to justify [a party’s] opposition to the motion.’ ” Kaiser Foundation Health Plan, 662 F.2d at 645. Rule 56(c) requires at a minimum that an adverse party be extended at least ten days notice before summary judgment may be entered. Rule 56(c); Beck v. Borden, Inc., 724 F.2d 44 (6th Cir.1984); Kistner v. Califano, 579 F.2d 1004, 1005 (6th Cir.1978) (per curiam).
“Noncompliance with the time provision of the rule deprives the court of authority to grant summary judgment, ... unless the opposing party has waived this requirement, ... or there has been no prejudice to the opposing party by the Court’s failure to comply with this provision of the rule.” Kistner, 579 F.2d at 1005 (citations omitted). See also Winbourne v. Eastern Air Lines, Inc., 632 F.2d 219 (2d Cir.1980); Management Investors v. United Mine Workers of America, 610 F.2d 384 (6th Cir.1979); Adams v. Campbell County School Dist., 483 F.2d 1351, 1353 (10th Cir.1973); Winfrey v. Brewer, 570 F.2d 761, 764 (8th Cir.1978) (“[T]he procedural requirements of Rule 56 are to be strictly adhered to.”).
In an analogous case, a district court’s grant of summary judgment was reversed where it had violated its own pretrial timetable. In reversing the trial court, the Seventh Circuit stated:
By his pre-trial order, the district judge extended the 10-day response time to summary judgment motions provided for in Rule 56(c) to a 33-day period. Once this period was set, the district court was obligated to adhere to its schedule under the same principles which require a dis[*972] trict court to allow 10 days to respond to a summary judgment motion in cases where that response period has not been altered by a pre-trial order. Courts have consistently held that a district court which does not comply with the advance notice and response provisions of Rule 56(c) has no power to enter summary judgment.
Indiana Port Comm’n v. Bethlehem Steel Corp., 702 F.2d 107, 111 (7th Cir.1983).
Appellee’s argument characterizing the trial court’s sua sponte action as harmless error under the facts of this case is also less than persuasive. In addressing essentially similar circumstances, this circuit has concluded that:
The plaintiff in this case did not receive appropriate notice of the district court’s intention to enter summary judgment. Since the defendants did not move for summary judgment and since the order of January 14, 1983 did not mention the possibility of summary judgment being entered, the plaintiff was justifiably unsure about the procedural posture of the case_ We hold that where a district court is contemplating entering sua sponte summary judgment against one of the parties, that party is entitled to unequivocal notice of the court’s intentions. The plaintiff did not receive such notice here.
Yashon v. Gregory, 737 F.2d 547, 552 (6th Cir.1984). See also Harrington v. Vandalia-Butler Board of Education, 649 F.2d 434, 436 (6th Cir.1981); Hoopes v. Equifax, Inc., 611 F.2d 134, 136 (6th Cir.1979); accord Township of Benton v. County of Berrien, 570 F.2d 114, 119 (6th Cir.1978). In the instant case, the prejudice to the plaintiff which resulted from the court’s order of October 21, 1986 limiting the subject of the appellee’s summary judgment motion, the conduct of the discovery proceedings, the briefs and arguments to a single issue of contract formation, far exceeded the prejudice implicated in Yashon. The appellant’s surprise and resistance to ADP’s efforts to extend the arguments at the April 30, 1987 hearing on the motion for summary judgment to include the issue of breach was evidenced by Routman's objections and refusal to address it.
In sum, this court concludes that the trial court’s action as disclosed by its order of October 21, 1986, and its sua sponte summary disposition of the case on an issue that appellant was foreclosed from pursuing during discovery and briefing, was highly prejudicial to the appellant’s pre-ar-gument preparation, and court presentation and constituted clear error and an abuse of discretion. Accordingly, the decision of the trial court is reversed and the case is remanded for further consideration not inconsistent with this decision.