           IN THE SUPREME COURT OF THE STATE OF DELAWARE

THOMAS HOLSEY,            §
                          §                   No. 537, 2014
    Defendant Below,      §
    Appellant,            §
                          §
    v.                    §                   Court Below: Superior Court
                          §                   of the State of Delaware
EDWARD J. HYNES, PATRICIA §                   in and for Kent County
HYNES, and JAMES DOWD,    §                   C.A. No. K11J-01913 (RBY)
                          §
    Plaintiffs Below,     §
    Appellees.            §

                            Submitted: March 20, 2015
                             Decided: May 11, 2015

Before STRINE, Chief Justice; HOLLAND, and VAUGHN, Justices.

                                       ORDER

         This 11th day of May 2015, upon consideration of the parties‟ briefs and the

record below, it appears to the Court that:

         (1)   The appellant, Thomas Holsey, filed this appeal from the Superior

Court‟s denial of his motions to set aside a sheriff‟s sale and for a new trial. We

conclude there is no merit to the appeal and affirm the judgment of the Superior

Court.

         (2)   The record reflects that, in November 2011, the appellees, Edward J.

Hynes and Patricia Hynes, transferred a judgment they obtained against Thomas

Holsey and The Church of God in Christ, Inc. entities (the “Church”) in the Court
of Common Pleas to the Superior Court.          The Hyneses sought to satisfy the

judgment through a sale of real estate owned by one of the Church entities and

located at 80 Case Ridge Road, Dover, Delaware (“Property”). Holsey, the bishop

of the Church in Delaware, resided on the Property.

      (3)    The remaining appellee James Dowd purchased the Property at

sheriff‟s sale on April 15, 2014 for $250,000. On April 17, 2014, Holsey filed a

motion to set aside the sheriff‟s sale. The Church, the real estate owner, has not

objected to the sale. Accordingly, the Church is not a party to this appeal. A

hearing was scheduled for June 6, 2014. The Hyneses opposed Holsey‟s motion

and Dowd moved to intervene.

      (4)    On the morning of the June 6, 2014 hearing, Holsey and Javier

Michael Bailey (former counsel to Holsey) filed affidavits stating that Holsey had

arranged for a loan to pay all of the debts on the Property and that funds sufficient

to pay the outstanding judgment at the time of the sheriff‟s sale were in an

attorney‟s escrow account. At the hearing, the Hyneses‟ counsel indicated that

there had been a series of unfulfilled promises that the judgment would be satisfied

and contended that the judgment was unsatisfied at the time of the sheriff‟s sale.

Holsey stated in response that John Williams, counsel for the Church, had funds in

escrow to satisfy the judgment at the time of the sheriff‟s sale.




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      (5)    Williams informed the Superior Court that he did not have any such

funds in his escrow account and that he needed assurances from the national

Church before the loan could close.       Bailey told the Superior Court that the

proceeds from Holsey‟s loan had been transferred to a different attorney, Sharon

Anderson. According to Bailey, Anderson, an out-of-state attorney, was working to

obtain Delaware co-counsel.      The Superior Court continued the hearing until

August 1, 2014 to see if the parties could resolve their dispute. The Superior Court

also granted Dowd‟s motion to intervene, acknowledging that Dowd, as the buyer

of the Property at the sheriff‟s sale, would likely oppose setting aside the sale even

if the other parties could reach an agreement.

      (6)    At the beginning of the August 1, 2014 hearing, Delaware counsel,

who stated that he became involved on Holsey‟s behalf approximately twenty

minutes before the hearing, requested the pro hac vice admission of Sharon

Anderson. The Superior Court denied the request because it was late, but did

allow Anderson to clarify certain factual matters during the hearing.

      (7)    The Hyneses argued that Holsey lacked standing to object to the

sheriff‟s sale because the Church owned the Property and had not objected to the

sale. The Hyneses further argued that even if Holsey was a legitimate party in

interest, he had not identified a basis for setting aside the sheriff‟s sale and that

their judgment was still unsatisfied. In response to Holsey‟s argument that


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Dowd had forfeited his right to the Property because he had not paid the balance of

his $250,000 bid as required by Kent County Sheriff‟s Office (the “sheriff‟s

office”) procedures, Dowd‟s counsel stated that Dowd paid $50,000 to the sheriff‟s

office at the time of the sale and deposited the remaining $200,000 in his counsel‟s

office account for payment to the sheriff‟s office, but the sheriff‟s office informed

Dowd that he would not be permitted or required to deposit the funds until the

Superior Court resolved Holsey‟s motion to aside the sheriff‟s sale. Dowd also

argued that Holsey had not identified a basis for setting aside the sheriff‟s sale.

         (8)   Holsey then contended that the Hyneses‟ counsel told him there would

be no sheriff‟s sale if the judgment was paid, he had paid money toward the

judgment, and there was money in escrow for payment of the judgment at the time

of the sheriff‟s sale. According to Anderson, money to pay the judgment would

have been transferred to Williams before the sheriff‟s sale, but for a third party

who had claimed Holsey did not have authority to sign for the Church. Anderson

also claimed that Williams (who was not present at the hearing) said two days

earlier he would have the money to satisfy all of the parties within 72 hours.

Finally, Anderson argued that the sale should not be confirmed because the

sheriff‟s office had not received the $200,000 balance of the $250,000 purchase

price.




                                           4
      (9)    In a bench ruling, the Superior Court rejected Holsey‟s arguments and

denied the motion to set aside the sheriff‟s sale. On August 6, 2014, Dowd

submitted a proposed form of order denying Holsey‟s motion to set aside the

sheriff‟s sale and confirming the sheriff‟s sale. The Superior Court signed the

order on August 28, 2014. Dowd has since paid the balance of the purchase price

and the Sheriff conveyed the property to Dowd and disbursed the purchase funds.

      (10) On September 16, 2014, Holsey filed a motion for a new trial under

Superior Court Civil Rules 60(b)(1), (b)(3), and (b)(6). On September 17, 2014,

the Superior Court denied the motion as untimely under Superior Court Civil Rule

59 and for failing to satisfy the requirements of Superior Court Civil Rule 60.

Holsey now appeals the Superior Court‟s August 28, 2014 and September 17, 2014

orders.

      (11) On appeal, Holsey argues that: (i) the Superior Court erred in denying

his motion to set aside the sheriff‟s sale because Dowd did not pay the $200,000

balance of his $250,000 bid for the Property within approximately thirty days of

the sale as required by the sheriff‟s office procedures and there were irregularities

in the loan process that led to the sheriff‟s sale; (ii) the Superior Court should have

allowed his out-of-state counsel to appear and call witnesses or granted a

continuance so that the appellees could respond to the pro hac vice motion; and

(iii) the Superior Court erred in denying his motion for a new trial. The Hyneses


                                          5
contend that Holsey‟s appeal was untimely as to all issues, except his motion for a

new trial, because the appeal was not filed within thirty days of the August 1, 2014

hearing, and that Holsey lacked standing to challenge the sheriff‟s sale. The

Hyneses and Dowd also argue that the Superior Court did not err in denying

Holsey‟s motions.

          (12) Questions of law are reviewed de novo.1 We review the Superior

Court‟s denial of a motion to set aside a sheriff‟s sale and the denial of a motion

for a new trial for an abuse of discretion.2 As long as the Superior Court “has not

exceeded the bounds of reason in view of the circumstances and has not so ignored

recognized rules of law or practice so as to produce injustice, its legal discretion

has not been abused.”3

          (13) We reject the Hyneses‟ contention that Holsey‟s appeal of the denial

of his pro hac vice motion and his motion to set aside the sheriff‟s sale is untimely.

A civil appeal must be filed “[w]ithin 30 days after entry upon the docket of a

judgment, order or decree from which the appeal is taken.”4 Although the Superior

Court denied the pro hac vice motion and motion to set aside the sheriff‟s sale
1
    Brooks v. Johnson, 560 A.2d 1001, 1002-03 (Del. 1989).
2
  Deutsche Bank Nat. Trust Co. Goldfeder, 2014 WL 644442, at *2 (Del. Feb. 14, 2014); Young
v. Frase, 702 A.2d 1234, 1236 (Del. 1997).
3
    Firestone Tire & Rubber Co. v. Adams, 541 A.2d 567, 570 (Del. 1988).
4
    Supr. Ct. R. 6(a).


                                                6
from the bench at the August 1, 2014 hearing, the transcript reflects that Dowd

contemplated the submission of an order confirming the sheriff‟s sale and that the

Superior Court was willing to sign such an order. Five days after the hearing,

Dowd submitted a proposed form of order denying Holsey‟s motion to set aside the

sheriff‟s sale and confirming the sheriff‟s sale. The signed order was docketed on

August 28, 2014. Holsey filed this appeal on September 23, 2014, within thirty

days of the August 28, 2014 order. Thus, Holsey‟s appeal is timely.

          (14) We also conclude that Holsey had standing to object to the sheriff‟s

sale. “[A] petition to set aside a sheriff‟s sale „is simply the means whereby a

person who considers himself aggrieved may call the Court‟s attention to some

defect, irregularity, neglect, misconduct or other sufficient matter whereby his

rights have been prejudiced.‟”5 Holsey was a bishop of the Church entity that

owned the Property and had resided on the property for years. The Hyneses

pursued the sheriff‟s sale to satisfy a judgment they obtained against Holsey and

the Church and included Holsey as one of the recipients of the sheriff‟s sale notice

required by Superior Court Civil Rule 69(g).6 Holsey claims that he paid money to


5
 Burge v. Fidelity Bond & Mortg. Co., 648 A.2d 414, 419 (Del. 1994) (quoting Girard Trust
Bank v. Castle Apartments, Inc., 379 A.2d 1144, 1145 (Del. 1977)).
6
    Under this rule:

          No sheriff‟s sale of real estate shall be held unless at least seven (7) days before the sale
          the plaintiff or his counsel of record shall send by certified mail, return receipt requested
          to (1) holders of liens on the real estate which is the subject of such sale who have
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the Hyneses‟ counsel in order to extend the sale date, but when the judgment was

not paid in full, the Hyneses proceeded with the sheriff‟s sale.                        Under these

circumstances, we conclude that Holsey suffered injury as a result of the sheriff‟s

sale of the Property and thus had standing to challenge the sale.

         (15) We next turn to Holsey‟s claim that the Superior Court erred in

denying his motion to set aside the sheriff‟s sale because Dowd did not pay the

$200,000 balance of his $250,000 bid for the Property as required by the sheriff‟s

office procedures and because the loan process was unfair and irregular. When

reviewing a sheriff‟s sale, the Superior Court must determine whether there was a

defect or irregularity in the sale process or neglect of duty or misconduct by the

sheriff that prejudiced the rights of interested parties.7 Under the sheriff‟s office

procedures, the winning bidder must pay 20% of the bid price on the day of sale

and the remaining balance within approximately thirty days of the sale. The


         acquired such liens at least thirty (30) days prior to the sheriff‟s sale; (2) to tenants
         holding or possessing a leasehold estate for years or at will in such real estate who have
         acquired such estate at least thirty (30) days prior to the sheriff‟s sale; (3) to record
         owners acquiring title to such real estate (terre tenants) at least thirty (30) days prior to
         the sheriff‟s sale; and (4) to persons having an equitable or legal interest of record,
         including an interest pursuant to a judicial sale or a statutory sale pursuant to § 8771 et
         seq. of Title 9 at least thirty (30) days prior to such sale a notice consisting of a Notice to
         Lien Holders, Tenants, Record Owners and Persons Having an Interest of Sheriff‟s Sale
         of Real Estate substantially similar to Form 37 Appendix of Forms (Superior Court) and a
         copy of the advertisement of the sale posted in accordance with § 4973 of Title 10.

Super. Ct. Civ. R. 69(g).
7
    Burge, 648 A.2d at 420.


                                                   8
parties agree that Dowd did not pay the $200,000 balance within approximately

thirty days of the April 15, 2014 sale. According to Holsey, this means there was a

procedural defect in the sale process that required the Superior Court to set aside

the sheriff‟s sale. We disagree.

      (16) The record reflects that Dowd was prepared to pay the $200,000

balance within approximately thirty days of the sale, but the sheriff‟s office would

not accept the payment. Dowd‟s counsel represented to the Superior Court that he

had received $200,000 from Dowd for payment of the remaining balance, Dowd

spoke to a clerk in the sheriff‟s office on May 19, 2014 about paying the balance,

the clerk spoke to the sheriff, and then the clerk informed Dowd that he would not

be permitted or required to deposit the funds until the Superior Court resolved the

motion to set aside the sheriff‟s sale. In an affidavit executed on August 1, 2014,

Dowd summarized his conversation with the sheriff‟s office on May 19, 2014.

      (17) Holsey does not cite any cases in which a sheriff‟s sale was set aside

because the sheriff‟s office would not accept payment of the purchase price

balance while a motion to set aside a sheriff‟s sale was outstanding. Setting aside a

sheriff‟s sale under these circumstances would unfairly prejudice a prevailing

bidder who was prepared to comply with the sheriff‟s office procedures, simply

because an objecting party disputed the sale. Thus, the Superior Court did not err




                                         9
in finding that the refusal of the sheriff‟s office to accept Dowd‟s payment was an

insufficient basis for setting aside the sheriff‟s sale.

          (18) As to Holsey‟s claims of “irregularities and unfairness in the loan

process, which gave rise to the sheriff‟s sale proceeding,”8 Holsey appears to

contend that misinformation was provided to Williams in order to thwart Holsey‟s

ability to close on the loan and pay off the judgment. Anderson told the Superior

Court that a third party suggested to Williams that Holsey did not have authority to

sign documents for the Church. The record contains no evidentiary support for this

claim and there is no contention that the Hyneses, Dowd, or the sheriff

misinformed Williams. The Superior Court did not err in refusing to set aside the

sheriff‟s sale based upon this claim.

          (19) The Superior Court also did not err in denying Holsey‟s pro hac vice

motion for admission of Sharon Anderson or in not ordering a sua sponte

continuance so that the appellees could respond to the pro hac vice motion.

Attorneys who are not members of the Delaware bar “may be admitted pro hac

vice in the discretion” of the Superior Court.9 Although Anderson was identified

as an attorney helping Holsey at the June 6, 2014 hearing that was continued until

August 1, 2014, no Delaware counsel sought Anderson‟s pro hac vice admission

8
    Brief of Appellant at 10.
9
    Super. Ct. Civ. R. 90.1(a).


                                            10
until shortly before the August 1, 2014 hearing started. Holsey contends that he

had difficulty obtaining Delaware counsel who did not have a conflict of interest in

Kent County, but he could have retained an attorney in New Castle County or

Sussex County.

      (20) Notwithstanding the denial of the motion, the Superior Court

permitted Anderson to make certain factual representations. The Superior Court

also heard arguments from Holsey. Holsey claims that his out-of-state counsel was

not permitted to call witnesses, but he could have called witnesses himself and did

not attempt to do so. Under these circumstances, we conclude that the Superior

Court did not err in denying the pro hac vice motion. We also conclude that the

Superior Court was not required to grant another continuance (which was not even

requested at the August 1, 2014 hearing) so that the Hyneses and Dowd could

respond to the pro hac vice motion.

      (21) Finally, the Superior Court did not err in denying Holsey‟s motion for

a new trial Superior Court Civil Rules 60(b)(1), (b)(3), and (b)(6). In support of

this argument, Holsey again relies on alleged misinformation provided by a third

party to Williams regarding Holsey‟s ability to sign documents for the Church.

This claim does not constitute “[m]istake, inadvertence, surprise, or excusable

neglect” under Superior Court Civil Rule 60(b)(1) or “fraud…or other misconduct

of an adverse party” under Superior Court Civil Rule 60(b)(3)(emphasis added).


                                        11
Nor does this claim constitute “extraordinary circumstances” that warrant vacating

the Superior Court‟s judgment to accomplish justice under Superior Court Civil

Rule 60(b)(6).10

          (22) Holsey also claims that if the funds he paid to extend the sale date had

been applied to the outstanding judgment, then the Property would not have been

sold. Holsey did not make this claim at the June 6, 2014 hearing or the August 1,

2014 hearing and points to no evidence in the record to support this claim. Holsey

does not claim that the entire judgment was satisfied by the time of the sheriff‟s

sale. Having carefully reviewed the record, we conclude that the Superior Court

did not err in denying Holsey‟s request for relief under Superior Court Civil Rules

60(b)(1), (b)(3), and (b)(6).

          NOW, THEREFORE, IT IS ORDERED that the motion to affirm is

GRANTED and the judgment of the Superior Court is AFFIRMED.

                                                               BY THE COURT:
                                                               /s/ Leo E. Strine, Jr.
                                                               Chief Justice




10
     Jewell v. Div. of Soc. Servs., 401 A.2d 88, 90 (Del. 1979).


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