In Oldham v. O.K. Farms, the Tenth Circuit reversed the trial court’s summary judgment granted on grounds not raised by the parties. The Court stated:
The rules of civil procedure permit a district court to grant a summary judgment motion “on grounds not raised by a party,” but only “[a]fter giving notice and a reasonable time to respond.” Fed. R. Civ. P. 56(f)(2). Thus, “[t]hough we generally don’t favor the granting of summary judgment sua sponte, a district court may do so if the losing party was on notice that she had to come forward with all of her evidence.” Johnson v. Weld County, 594 F.3d 1202, 1214 (10th Cir. 2010) (internal quotation marks and brackets omitted). “[E]ven if such notice is lacking, we will still affirm a grant of summary judgment if the losing party suffered no prejudice from the lack of notice.” Id. If such prejudice is shown, however, then we will reverse.
In this case, the district court gave no notice that it intended to grant O.K.’s summary judgment motion on a basis that was not raised by O.K. Nor did the district court give Plaintiff any time to respond to this decision, much less a reasonable amount of time to consider the court’s sua sponte theory and to develop the legal and factual arguments to dispute it. Moreover, our review of the record and of the arguments raised by the parties persuades us that Plaintiff was prejudiced by this lack of notice and opportunity to respond.