UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-2589

ADAMS HOUSING, LLC,

Plaintiff - Appellee,

v.

THE CITY OF SALISBURY, MARYLAND,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. J. Frederick Motz, Senior District 

Judge. (1:15-cv-01011-JFM)

Argued: October 26, 2016 Decided: November 29, 2016

Before THACKER and HARRIS, Circuit Judges, and Gerald Bruce LEE, 

United States District Judge for the Eastern District of 

Virginia, sitting by designation.

Vacated and remanded by unpublished per curiam opinion. 

Victoria M. Shearer, KARPINSKI, COLARESI & KARP, P.A., 

Baltimore, Maryland, for Appellant. Luke Americus Rommel, 

ROMMEL & ASSOCIATES, LLC, Salisbury, Maryland, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Adams Housing, LLC (“Adams Housing”) filed this action 

against the City of Salisbury, Maryland, (“Salisbury”) pursuant 

to 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. 

§ 2201(a), alleging a variety of state and federal violations. 

Salisbury responded and moved to dismiss all claims. In an 

unusual posture, the district court apparently converted the 

motion to dismiss into a motion for summary judgment and granted 

judgment to Adams Housing, the nonmovant. Because Salisbury did 

not receive notice and an adequate opportunity to argue its 

case, we vacate the district court’s judgment and remand for 

further proceedings.

I.

In 1997, Salisbury enacted its Occupancy Ordinance “to 

establish and maintain basic minimum standards and conditions 

essential for the protection of health, safety and general 

welfare of the public.” Salisbury, Md., Code of Ordinances

§ 15.24.030(A) (“the Ordinance”).1 The Ordinance limits housing 

in certain areas to “one of the following groups”: (1) families 

related by blood, marriage, or a “custodial relationship”; (2) 

“[u]p to a maximum of two persons who are not so related, 

 1 The Ordinance has been amended on multiple occasions since 

1997, and we refer to the version in effect in 2014. 
3

hereinafter referred to as ‘unrelated persons’”; or (3) any 

group of four persons approved as a “functional family.” 

§ 15.24.490.

In July 2014, two brothers and their friend -- all 

college students -- rented a house at 418 West College Avenue, 

Salisbury, Maryland, from Adams Housing. Shortly thereafter, on 

September 26, 2014, Adams Housing received an order to reduce 

the number of occupants from the Code Enforcement Officer 

(“Order”). See J.A. 135-37.2 Adams Housing challenged the Order 

in a hearing before the Salisbury Housing Board of Adjustments 

and Appeals (“HBAA”). The HBAA found Adams Housing to be in 

violation of the Ordinance because the Ordinance “was written 

with the idea that two unrelated people would [not] share a 

house unless they were a family or they went through [the] 

functional family clause.” Id. at 214. Adams Housing 

challenged the HBBA decision in the Circuit Court for Wicomico 

County, Maryland. The action was stayed on May 26, 2015.

On April 8, 2015, Adams Housing filed a complaint 

against Salisbury in the Federal District Court for the District 

of Maryland alleging: the Ordinance, on its face, violated the 

Equal Protection and Due Process Clauses of the Fourteenth 

 2 Citations to the “J.A.” refer to the Joint Appendix 

filed by the parties in this appeal.
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Amendment; the Ordinance as applied to Adams Housing violated 

its equal protection and due process rights pursuant to both the 

Fourteenth Amendment and the Maryland Declaration of Rights; the 

Ordinance was void for vagueness on its face and as applied to 

Adams Housing; and Salisbury tortiously interfered with Adams 

Housing’s contracts. The complaint requested declaratory 

relief, costs, and attorney’s fees.

On June 18, 2015, Salisbury moved to dismiss the 

action pursuant to Federal Rule of Civil Procedure 12(b)(6). 

Adams Housing responded to the motion to dismiss and reiterated 

its litany of constitutional challenges. On September 24, 2015, 

the district court conducted a status conference call with all 

the parties. No transcript was kept of the phone call. 

According to the district court, on the call, “both 

parties agreed the facts of the case were undisputed and 

discovery was unnecessary.” Adams Hous., LLC v. City of 

Salisbury, Md., 147 F. Supp. 3d 390, 391 n.1 (D. Md. 2015). At 

oral argument before this court, however, Salisbury explained 

that, during the call, it had accepted the allegations in the 

complaint as true for the purposes of arguing the motion to 

dismiss but neither admitted their actual veracity, nor waived

any discovery rights. See Oral Argument at 12:34, Adams Hous., 

LLC v. City of Salisbury, Md., No. 15-2589 (4th Cir. Oct. 26, 
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2016), http://www.ca4.uscourts.gov/oral-argument/listen-to-oralarguments. 

Indeed, after the phone call, Salisbury sent a letter 

to the district court requesting “the Court permit the case to 

move forward to discovery” if the court denied the motion to 

dismiss. J.A. 240. The district court acknowledged receiving 

the letter but otherwise ignored its content. See Adams Hous., 

LLC, 147 F. Supp. 3d at 391 n.1 (“I conducted a call with Adams 

Housing and Salisbury’s counsel on September 24, 2015, where 

both parties agreed the facts of the case were undisputed and 

discovery was unnecessary. On the call, both parties consented 

to the issuance of a final opinion; however, on October 8, 2015, 

defendant’s counsel wrote a letter requesting the court move 

forward with discovery if I denied defendant’s motion for [sic] 

dismiss.”). 

On November 30, 2015, the district court entered its 

Memorandum Opinion and Final Order. The district court 

dismissed Adams Housing’s facial challenges under the Equal 

Protection and Due Process Clauses, the facial vagueness 

challenge, and the tortious interference with contract claim.3 

However, instead of simply denying the motion to dismiss as it 

 3 The court did not reach the as-applied due process and 

equal protection challenges. See Adams Hous., LLC, 147 F. Supp.

3d at 399. 
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related to the as-applied vagueness challenge, the district 

court awarded judgment to Adams Housing, “declar[ing] 

Salisbury’s interpretation and enforcement of the Occupancy 

Ordinance unconstitutionally vague as-applied to Adams Housing.” 

Adams Hous., LLC, 147 F. Supp. 3d at 399.

The district court was cryptic. Its opinion never 

uses the words “summary judgment” nor does it cite any rule of 

procedure or precedent to support this unusual disposition. As 

best we can decipher, the district court sua sponte converted 

the motion to dismiss into cross-motions for summary judgment 

and granted summary judgment to Adams Housing. See Adams Hous., 

LLC, 147 F. Supp. 3d at 391. The district court simply stated

the action was “ripe for declaratory judgment” and declared 

Salisbury’s occupancy ordinance vague as-applied. Id. at 391,

399. During argument before this court, both parties 

interpreted the district court’s opinion as granting summary 

judgment. See Oral Argument, Adams Hous., LLC, No. 15-2589, at 

12:34, 33:44. We too classify the declaration as a grant of 

summary judgment. 

Salisbury timely filed this appeal. Because we 

conclude the district court failed to follow the proper 

procedure for granting summary judgment, we vacate its judgment. 
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II.

District courts have inherent power to grant summary 

judgment. See Allstate Ins. Co. v. Fritz, 452 F.3d 316, 323 

(4th Cir. 2006). However, before granting summary judgment, a 

court must afford the losing party notice and an opportunity to 

be heard. See id. The court must give notice to ensure that 

the party is aware that it must “come forward with all of [its] 

evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986).

Once such party has sufficient notice, the party also needs an 

“adequate opportunity” to present its case and “demonstrate a 

genuine issue of material fact.” U.S. Dev. Corp. v. Peoples 

Fed. Sav. & Loan Ass’n, 873 F.2d 731, 735 (4th Cir. 1989). 

These requirements serve to provide the party with a “full and 

fair opportunity to present its case.” aaiPharma Inc. v. 

Thompson, 296 F.3d 227, 235 (4th Cir. 2002).

Here, the district court failed to provide notice and

an opportunity to respond. The only possible attempt to do so 

was during the status conference call, but that call was 

inadequate for both tasks.

At that juncture, when the only pending matter was a 

motion to dismiss, Salisbury could not have known it needed to 

come forward with all of its evidence. See U.S. Dev. Corp., 873 

F.2d at 735 (explaining that the notice must be viewed in the 

context of “the procedural, legal, and factual complexities of 
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the case”). Similarly, the call did not provide an adequate 

opportunity for Salisbury to present its case. See id. On the 

call, it would have been impossible for Salisbury to 

spontaneously marshal all of its evidence and demonstrate its 

relevance to the legal allegations. 

In sum, when no motion for summary judgment was 

pending, no opportunity for discovery was provided, and no 

hearing was conducted, the district court could not grant 

summary judgment. This was not a fair chance to litigate. 

Therefore, the district court’s grant of summary judgment was 

improper.

III.

For the foregoing reasons, we vacate and remand for 

further proceedings to allow an adequate opportunity for 

discovery and for each side to argue its case. 

VACATED AND REMANDED