### IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ROUENA KONKIEL and ) SHANNON TRUITT, ) ) Defendants

- Below /Petitioners
, ) )

v. ) C.A . No. S21A

- 11

- 005 MHC ) VAN GABRIEL TERLEM E ZIAN
, ) a.k.a. VAN GABRIEL ) TERLEM A ZIAN
, 1 ) ) Plaintiff

- Below /Respondent

. )



### OPINION AND ORDER Submitted: March 15 , 202 2 Decided: March 21 , 202 2

Upon Consideration of Petition ers ’ Complaint for Writ of Certiorari, 

### GRANTED

. Decision of the Justice of the Peace Court is 

### VACATED and 

### REMANDED

. Emery Abdel

- Latif, Esquire, Gonser and Gonser, P.A., Wilmington, Delaware

. Attorney for Defendants

- Below/Petitioners

.
Paul G. Enterline, Esquire, Georgetown, Delaware

. Attorney for Plaintiff

- Below/ Respondent

.



### CONNER, J.

1 The notice of appeal identifies the Plaintiff

- Below/Respondent as “Van Gabriel Terlemezian.” Documents in the Justice of the Peace Court record refer to the Plaintiff

Below/Respondent as “ Van Gabriel Terlemazian. ”2 

### INTRODUCTION (1) This case stems from a residential landlord

- tenant dispute in Sussex
County, Delaware

. Presently, Defendants

- Below /Petitioners Rouena Konkiel
and Shannon Truitt (“Petitioners”) seek an order from this C ourt vacating the

decision of the J ustice of the Peace Court ( the “ JP Court ” ) granting summary possession of a rental unit to Plaintiff

- Below/Respondent Van Gabriel

Terlem e zian, a.k.a. Van Gabriel Terlem a zian 2 (“Respondent”) and remanding

the case for a trial. Petitioners ’ primar y contention is that the JP Court’s failure

to conduct a jury trial deprived Petitioners of their statutory right s under 25 Del.

C. § 5710. For the reasons set forth below, the writ of certiorari is GRANTED

.
T he JP Court’s August 6, 2021
, order is VACATED

. This matter is

REMANDED for further proceedings consistent with this order.



### FACTUAL AND PROCEDURAL BACKGROUND

(2) On October 7, 2020, Respondent informed Petitioners in writing that
Petitioners had sixty days to vacate the residential rental unit located at 18916
Shingle Point Road, Georgetown, Delaware (the “Property”) because the

2 Supra

.3

Property was listed for sale. 3 The lease expired and Petitioners failed to vacate

the Pr operty. 4

(3) On October 23, 2020, Respondent filed an action in the JP Court
seeking sum mary possession of the Property. 5 Petitioners filed a counterclaim
on May 11, 2021, which contained contentions including that Respondent ’s
notice of termination of the lease was retaliatory. 6

(4) On August 3, 2021, Respondent filed a motion for summary judgment
in JP Court on the issue of possession of the Property. 7 On August 5, 2021, the
JP Court held a conference at which the summary judgment motion was
presented. 8 The next day, or three days after the filing of the motio n for
summary judgment, the JP Court issued an order granting Respondent ’s motion
for summary judgment on the possession issue and set the retaliatory

counterclaim for a trial at a date to be determined

. 9
(5) Petitioners then filed an appeal to a three

- judge panel in the JP Court

pursuant to 25 Del. C. § 5717. While the appeal to the three

- judge panel was

3 Terlemazian v. Konkiel
, Del. J.P., C.A. No. JP17

- 20

- 004160, Martin, J. (Nov. 12, 2021), at 2 [hereinafter JP Appeal Opinion at

-- ]. 4 Id. 5 Id. 6 Id. 7 Pet’rs Compl. Writ of Mand

. , E

- File 66861578 , Ex. A

. 8 Pet’rs Compl. Writ of Cert., E

- File 67115730, Ex. B at 4. 9 Terlemazian v. Konkiel , Del. J.P., C.A. No. JP17

- 20

- 004160, Wood, J. (Aug. 6, 2021)

.4

pending, Petitioners filed a complaint in this Court for a writ of mandamus

. 10

O n September 17, 2021, th e Court dismissed that complaint and explained that
mandamus is not a proper remedy in an interlocutory matter that can be
subsequently reviewed on appeal. 11

(6) In November 2021, the three

- judge JP Court panel considered a new summary possession motion filed by Respondent. 12 O n November 12, 2021
, t he
panel entered an o rder granting possession of the rental property to
Respondent

. 13

(7) On November 22, 2021, Petitioners filed a notice of appeal and
petitioned this Court for a writ of certiorari (the “Petition”). 14 Two days later,
Respondent filed a motion to dismiss for failure to state a claim. 15 On December
13, 2021, Petitioners filed a response to Respondent ’s motion to dismiss. 16 Oral
argument was held on December 17, 2021, and thereafter the Court requested

add itional items from the parties.

10 Pet’rs Compl. Writ of Mand

. , E

- file 66861578

. 11 Mot. H r ’g Tr. , Sept. 17, 2021, 3:2

– 4:22
, E

- File 66951762 ; Williams v. Marvel, 158 A.2d 486, 486 (Del. 1960). 12 See JP Appeal Opinion at 3. 13 See Id. at 2

- 3

. 14 Pet’rs Compl. Writ of Cert., E

- File 67115730

. 15 Pl. Mot. to Dismiss , E

- File 66882951

. 16 Pet’rs Resp. Mot. to Dismiss, E

- File 67164437.5 

### PARTY CONTENTIONS

(8) In addition to the a fore mentioned argument advanced by the
Petitioners regarding a statutory right to a jury trial under the Residential

Tenant

- Landlord Code (the “Code”)
, 17 Petitioners also contend that the JP
Court’s grant of summary judgment was inappropriate because neither the Code
nor the JP Court Civil Rules reference summary judgment.
(9) Respondent seeks dismissal of Petitioners ’ complaint for a writ of

certiorari for failure to stat e a claim pursuant to Superior Court Civil Rule
12(b)(6). Respondent first argues that the complaint should be dismissed as
premature because it was filed before the judgment below became enforceable.
Respondent also contends that Petitioners failed to all ege any error or injustice
in the proceedings below because 25 Del. C. § 5710 requires a trial only when
triable issues of fact are raised, and here there were no trailable issues of fact.

17 25 Del. C. § 5710.6 

### STANDARD OF REVIEW

(10) Th e Superior Court may issue a writ of certiorari to the JP Court

pursuant to 10 Del. C. § 562. 18 As a threshold matter, “the judgment below must
be final, and there must be no other available basis for review. ” 19 If that initial
hurdle can be cleared, this Court’s review is narrow. “ While the common law

writ of certiorari is available to correct errors on the face of the record, the
General Assembly's intent would be frustrated by using that narrow review
improperly to conduct the functional equivalent of traditional appellate review
in Superior Court.” 20

(11) T h e Court’s review in this con text is limited to “consider[ation of] the
record to determine whether the lower tribunal exceeded its jurisdiction,
committed errors of law, or proceeded irregularly.” 21 An error of law occurs
when the lower court “proceeded illegally or manifestly contrary to law.” 22
Irregular proceedin gs occur when the lower court “failed to create an adequate

record for review.” 23

18 Maddrey v. Justice of Peace Court 13 , 956 A.2d 1204, 120 9 (Del. 2008); Munce v. Justice of the Peace Court No. 14 , 2019 WL 549581, at *2 (Del. Super. Feb. 8, 2019). 19 Matter of Butler , 609 A.2d 1080, 1081 (Del. 1992). 20 Maddrey , 956 A.2d at 1207 (italics removed)

. 21 Christiana Town Ctr., LLC v. New Castle Cty. , 865 A.2d 521 , 2004 WL 2921830, at *2 (Del. Dec. 16, 2004) (TABLE)

. 22 Id. (quoting Woolley, Delaware Practice, Volume I, § 921 ). 23 Id. (quoting Woolley, Delaware Practice, Volume I, § 923).7 

### DISCUSSION

A. The J udgment B elow is F inal
(12) As an initial matter, it is clear that the judgment below is final. “The
Code regulates all legal rights and remedies that stem from a residential rental
agreement.” 24 Under 25 Del. C. § 5701, the JP Court has jurisdiction over
summary possession cases regarding real property. A party to the proceedings
may appeal the JP Court’s initial judgment to a three

- member panel made up of

JP Court Officers , “which shall render final judgment . . . .” 25 The Code
provides no further appellate procedures for such cases. 26

(13) The Delaware Supreme Court has expressly held that the Superior
Court does not have jurisdiction to hear appeals from the JP Court in summary
possession of real property cases. 27 In li mited distinguishable circumstances, a
judgment in a summary possession case may be appealable to the Court of
Common Pleas, 28 however it is clear that summary possession proceedings are
not intended to be generally appealed beyond the three

- justice panel.

24 Metrodev Newark, LLC v. Justice of Peace Court No. 13 , 2010 WL 939800, at *6 (Del. Super. Feb. 18, 2010) ; 25 Del. C. § 5101(a). 25 25 Del. C. § 5717(a) (emphasis added). 26 See generally 25 Del. C. §§ 5101

- 5907. 27 Capano Investments v. Levenberg , 564 A.2d 1130, 1131 (Del. 1989); Bomba's Rest. & Cocktail Lounge, Inc. v. Lord De La Warr Hotel, Inc. , 389 A.2d 766, 76 8

- 6 9 (Del. 1978). 28 See Gibson v. N. Delaware Realty Co. Stoneybrook Townhomes , 1996 WL 453414, at *3 (Del. Super. June 6, 1996)

.8

(14) Here, after the initial judgment was entered, the three

- member panel
rendered judgment. Thus, there are no further avenues for review.

B. The Statutory Right to a Jury Trial Under the Code
(15) Section 5710 of the Code states, “ [w]here triable issues of fact are
raised, they shall be tried by the c ourt.” 29 While the language, “triable issues of
fact,” is reminiscent of a summary judgment standard, 30 the JP Court Civil
Rules do not expressly provide for summary judgment.
(16) It is conceivable that summary judgment in the JP Court may be
permissible under JP Court Civil Rule 1

. 31 H owever, this Court is disinclined to
espouse the soundness of such procedural practice when the time period
between the filing and granting of the motion affords the nonmovant merely
three days for filing a written response. 32

29 25 Del. C. § 5710

. 30 For example, the Delaware Supreme Court has used identical language in reviewing a grant of summary judgment, see AeroGlobal Capital Mgmt., LLC v. Cirrus Indus., Inc. , 871 A.2d 428, 443 (Del. 2005) (finding that “the Superior Court erred, as a matter of law, by granting summary judgment in favor of the defendants because there was a triable issue of fact

. . . .”) (emphasis added)

. 31 J.P. Civ. R. 1 reads in pertinent part, “[i]f no procedure is specifically prescribed by these Rules, the Court may proceed in any lawful manner not inconsistent with the Rules of another Delaware Court, statute, or administrative dire ctive.” 32 For instance, a motion for summary judgment in this Court must be “served at least 10 days before the time fixed for the hearing.” Super. Ct. Civ R. 56(c).9

(17) A party does not always have a statutory right to a trial under 25 Del.

C. § 5710. It is apparent from a plain reading of the statute that a trial is
required only when there is a triable issue of fact.
(18) Unfortunately, irregular proceedings occurred in that the record is

insufficient to conduct certiorari review of the JP Court’s decision to forego a

trial. Normally, a trial would be required to establish the elements of summary
possession (i.e. t he parties had a lease, the lease expired
, and proper notice to
vacate the premise was provided )

. 33 A trial would also provide the Petitioners
an opportunity to contest that summary possession is appropriate. If the JP
Court decides to award summary posses sion in lieu of a trial, the decision needs

to be clear that the JP Court found there was no “triable issue of fact”
necessitating a trial under § 5710. In order to determine there is no “triable issue
of fact,” the court must rely on facts established thr ough the discovery process,
affidavit or stipulation. This is necessary for both due process and to create a
proper record for review.
(19) Here, the JP Court’s August 6, 2021
, order failed to adequately
explain its decision to grant summary possession without a trial . The JP Court
precluded the possibility of a trial through the mechanism of summary judgment, but the court did not clearly conclude that it was doing so because

33 See 25 Del. C. § 5702.10

there was no triable issue of fact. In the JP App eal Opinion Senior Justice
Martin wrote that “[o]n August 17, 2021, the [Respondent] filed a Motion for
Summary Judgment on the issue of possession. In considering this Motion and

the [Petitioners] ’ stipulation to the facts outlined in paragraphs 2b

- 2i, the Court
found that there were no material facts in dispute on this issue.” 34 However, at
oral argument on December 17, 2021, counsel for Petitioners stated there were
no stipulated facts presented to the c ourt. Moreover, there are no stipulated fa cts

in the record. Thus, it is unclear what facts the JP Court relied upon in rendering
its decision, and how th ose facts were made part of the record

. (20) Therefore, t he JP Court proceeded irregularly in regard to its

determination of whether a trial was required. This Court directs the JP Court to
vacate and set aside the August 6, 2021
, o rder in this case. This matter is
remanded for further proceedings consistent with this order.



### CONCLUSION
(21) The Court finds that the Justice of the Peace Court proceeded
irregularly by failing to create an adequate record for review. Specifically, the
August 6 , 2021
, order lacked a statement accounting for whether a “triable issue

of fact” necessitate d a trial u nder 25 Del. C. § 5710. Accordingly, Petitioners ’

34 JP Appeal Opinion at 3.11

complaint for a w rit of c ertiorari is 

### GRANTED

. The Court directs the Justice

of the Peace Court to 

### VACATE and set aside the August 6, 2021
, order in this

case. This matter is 

### REMANDED for further proceedings consistent with this

order.



### IT IS SO ORDERED

.

/s/ Mark H. Conner Mark H. Conner, Judge

c c: Prothonotary