(concurring). I write separately to emphasize my concern about the procedural injustice manifest in this record. The circuit judge committed a procedural error of the most basic sort when it dismissed, on his own motion, on the date set for trial, plaintiffs contract and negligence claims without prior notice to plaintiff or a fair opportunity to be heard.
The judge had heard and denied defendants’ motion for summary disposition nearly a year earlier. On the date set for trial, the trial judge unilaterally reopened consideration of summary disposition, introduced new legal theories, and then heard argument on two questions: whether plaintiff furnished consideration for the alleged oral contract and whether the defendants owed a duty to the plaintiff upon which a negligence claim could be based. Neither issue had been raised in defendants’ earlier motion for summary disposi*89tion. After hearing argument on the subject, for which plaintiff had no fair opportunity to prepare, the court granted summary disposition to defendants on the basis of the court’s newly identified theories.
The Michigan Court Rules, while providing thorough and specific procedures on motion practice, are silent on the trial court’s authority to grant immediate summary disposition on the court’s own motion regarding legal theories propounded by the court. No doubt the drafters of the rules never contemplated this unusual situation. The court rules do require that a hearing on an opponent’s motion for summary disposition not take place until twenty-eight days after service. MCR 2.116(B) (2).
Such precipitate judicial decision making has occurred occasionally in the Sixth Circuit. See, e.g., Beaty v United States, 937 F2d 288 (CA 6, 1991); Routman v Automatic Data Processing, Inc, 873 F2d 970 (CA 6, 1989); Kistner v Califano, 579 F2d 1004 (CA 6, 1978). In Routman, the court held that a federal district court sua sponte may properly enter summary judgment where there is an absence of an issue of material fact and the movant is entitled to judgment as a matter of law. However, the party opposing summary judgment must be afforded notice and a reasonable opportunity to respond to all issues the court identifies. In Routman, p 971, the court sensibly recognized:
"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.’ ” [Portland Retail Druggists Ass’n v Kaiser Foundation Health Plan, 662 F2d 641, 645 (CA 9, 1981)]. [FR Civ P] 56(c) requires at a minimum that an adverse party be extended at least ten days notice *90before summary judgment may be entered. Rule 56(c); Beck v Borden, Inc, 724 F2d 44 (CA 6, 1984); Kistner v Califano, 579 F2d 1004, 1005 (CA 6, 1978) (per curiam).
Routman concluded that a district court that fails to comply with the time provisions of Rule 56(c) has no power to grant summary judgment unless the opposing party waives the requirement and suffers no prejudice. Instead, when a district court contemplates entering summary judgment against a party on its own motion, the party is entitled to unequivocal notice of the court’s intention. The failure to accord such notice is error requiring reversal. Litigants in Michigan courts should be afforded the same right and the same remedy.
I conclude that the trial court’s behavior — its disposition sua sponte of issues never before contemplated — was unjustified, whatever the pressures of the court’s busy docket. When any court contemplates sua sponte summary disposition against a party, that party is entitled to unequivocal notice of the court’s intention and a fair chance to prepare a response. In my view, a court that fails to afford that constitutionally rooted courtesy has no authority to grant summary disposition.