01-0703 Lutheran Church Extension Fund – Missouri Synod v. Epiphany Lutheran Church, et al.

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Epiphany Lutheran Church appeals a summary judgment in an action the Lutheran Church Extension Fund-Missouri Synod (the Fund) brought against it to foreclose two mortgages. Epiphany argues that (1) the trial court should not have entered summary judgment against it because neither party requested it and the court did not meet the requirements for a sua sponte judgment, (2) factual disputes between it and the Fund preclude summary judgment, and (3) the court should not have entered summary judgment against TCI Developers, Inc., on the counterclaim of unjust enrichment because no party requested the relief and the court did not meet the requirements for a sua sponte judgment.

We conclude that the trial court should not have entered, sua sponte, summary judgment against Epiphany. Neither party requested it, and the court failed to give Epiphany notice and an opportunity to develop facts and present a legal defense, which fairness requires.

Accordingly, we affirm in part, reverse in part and remand.

This opinion will not be published.

Dist III, Eau Claire County, Wahl, J., Per Curiam

Attorneys:

For Appellant: Timothy F. Nixon, Green Bay

For Respondent: John D. Leary, Eau Claire