S. Ct. Civ. No. 2011-0012

An order affirming a magistrate's judgment directing a tenant to vacate premises for failure to pay rent is reversed and the matter is remanded to the Superior Court for proper compliance with Superior Court Rule 322. In a forcible entry and detainer proceeding, after judgment was entered ordering eviction the tenant moved for reconsideration and a stay of execution on the grounds that the magistrate lacked jurisdiction over the complaint because the parties had allegedly entered into a mutual agreement for the purchase and sale of the property, and thus were no longer in a landlord/tenant relationship. While the reconsideration application was pending, the tenant filed a "notice of appeal," which was construed as a petition for internal review of a magistrate decision. While that application was pending the Presiding Judge promulgated Superior Court Rule 322, which requires a scheduling notice by the Clerk, as well as the filing of briefs. In this case the Superior Court judge assigned to consider tenant's petition erred by issuing an opinion and order adjudicating the merits of the matter, even though the parties had not submitted briefs, the Clerk of the Superior Court had not issued a briefing schedule, and the judge never notified the parties that the matter would be considered on the record without briefs. Rule 322 unquestionably applied, since it expressly states that it was effective immediately, superseding prior rules, and it is well established that amendments to procedural rules apply to all cases pending at the time of the rule change. No exception is applicable under Rule 322 since the judge never issued an order advising the parties that he intended to decide the petition based on the existing record without further briefing. Additionally, Rule 322.1(i)(B) only authorizes a judge to waive briefing sua sponte if the issue presented for review is an issue of law which has previously been determined by controlling authority and for which there is no reasonable dispute, and it is not clear how this high standard could have been met with respect to all the potential issues the tenant could have reasonably raised on appeal. Accordingly, the opinion and order below are reversed and the Clerk of the Superior Court is directed to issue a briefing schedule on remand so that the tenant may provide the Superior Court judge with arguments and legal authority in support of his appeal.