dissenting.
I respectfully dissent based upon the need to afford the parties due process. I do not argue with the practical decision the majority makes today. Nevertheless, I choose to dot the i’s and cross the t’s, a technical ruling to be sure.
This case came before this court for review after the trial court sua sponte dismissed the complaint for declaratory relief during a hearing on cross-motions for summary judgment. The defendant did not move to dismiss the complaint and no one was on notice that the court would undertake to do so. When it did so, the plaintiff was unprepared to respond to the unnoticed issue. In my view, this offends the notion of fairness, which the court system should emulate.
While any effort to reverse and remand the case may very well result in the same ultimate disposition, I believe the rules of procedure and the right to due process must be respected. Therefore I would reverse and remand the case for further proceedings.