¶ 47. {concurring). I agree with the majority opinion that "a court may act on its own motion pursuant to [Wis. Stat.] § 806.07, as long as the court provides the parties notice of its action and an opportunity to be heard."1 I write separately because the majority opinion erroneously concludes that the circuit court in the instant case gave the plaintiff notice of its action and the opportunity to be heard when acting on its own motion under Wis. Stat. § (Rule) 806.07.
*353¶ 48. The circuit court in the instant case acted "on its own motion under Wis. Stat. § 806.07 . . . without prior notice to the parties that it was considering such" action.2 Because the circuit court did not give the plaintiff notice that the circuit court would act on its own motion under Wis. Stat. § 806.07 to vacate the order for a default judgment in the plaintiffs favor, the plaintiff obviously had no opportunity to be heard on the matter prior to the court's action. The circuit court granted the motion under Wis. Stat. § 806.07 at the same time that it raised it.
¶ 49. Although acknowledging that the circuit court failed to provide notice to the plaintiff and an opportunity to be heard prior to acting on its own motion under Wis. Stat. § 806.07, the majority opinion concludes that the circuit court (retroactively) supplied the requisite notice and opportunity to be heard when the plaintiff moved for reconsideration of the circuit court's decision and the circuit court invited briefs from the parties. Majority op., ¶ 27.
¶ 50. The plaintiffs opportunity to be heard upon her motion for reconsideration cannot substitute for an opportunity to be heard prior to the decision which the plaintiff moved the circuit court to reconsider. With respect to her motion for reconsideration, the plaintiff, as the moving party, carried a burden that she would not have carried if given a timely opportunity to be heard before the circuit court acted on its own motion under Wis. Stat. § 806.07.
¶ 51. I concur in the mandate, however, because I conclude that the circuit court's error is not prejudicial *354under the circumstances of the instant case. I would follow Gittel v. Abram, 2002 WI App 113, 255 Wis. 2d 767, 649 N.W.2d 661, in which the court of appeals held that although the circuit court erred in failing to provide Gittel with notice and the opportunity to be heard on the issue of the court's authority under Wis. Stat. § 806.07, the circuit court's error was not prejudicial because the court of appeals reviewed all of Gittel's arguments de novo and decided them against Gittel.3
¶ 52. For the reasons set forth, I concur in the mandate but write separately.
Majority op., ¶ 20 (citing Gittel v. Abram, 2002 WI App 113, ¶ 27, 255 Wis. 2d 767, 649 N.W.2d 661).
I also agree with the majority opinion that the circuit court erroneously granted summary judgment on its own motion to the defendant Rutherford without complying with the procedural requirements under Wis. Stat. § 802.08(2). I do not address the summary judgment issue in this separate opinion.
Majority op., ¶ 19. See also majority op., ¶ 27 ("[T]he circuit court acted on its own motion without prior notice to Larry or any defendant!.]").
See Gittel v. Abram, 2002 WI App 113, ¶ 29, 255 Wis. 2d 767, 649 N.W.2d 661.