SHIPLEY v. NEW CASTLE COUNTY, 975 A.2d 764 (Del. 2009)

No. 568, 2008.Supreme Court of Delaware.Submitted: April 7, 2009.
Decided: June 15, 2009.

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Court Below: Superior Court of the State of Delaware in and for New Castle County, CA No. 07T-10-002.

Upon appeal from the Superior Court of Delaware.AFFIRMED.

John R. Weaver, Jr., Esquire of Wilmington, DE, for appellants.

Harshal Purohit-Patel, Esquire, of New Castle County Law Department, New Castle, DE, for appellee New Castle County.

Brian T. Murray, Esquire of Newark, DE, for Carello Development, LLC.

Before STEELE, Chief Justice, BERGER and RIDGELY, Justices.

RIDGELY, Justice:

Defendants-Appellants John Shipley and Rochelle D. Shipley appeal the Superior Court’s denial of their motion to set aside a sheriffs sale of real estate pursuant to Superior Court Civil Rule 60(b). The Shipleys raise three arguments on appeal. First, they argue that the court erred as a matter of law because the Sheriffs sale bill improperly described the property to be sold. Second, they argue that the court erred as a matter of fact in finding that the Shipleys had not paid their property tax bills in full. Third, they argue that the court erred as a matter of law in finding that their motion was untimely. We find no merit to these arguments and affirm.

I. Facts and Procedural History
The Shipleys purchased 609 Wildel Avenue — known by its New Castle County (the “County”) parcel number: 10-010.30-052 — by deed dated July 19, 1978. As a result of several years of repeated complaints to the County Office of Code Enforcement (the “OCE”), the Shipleys were notified by certified and first-class mail as well as a posting on the property that 609 Wildel Avenue was and remained in violation of the New Castle Property Maintenance Code (the “Code”).

The Shipleys failed to bring their property in compliance with the Code and criminal charges were filed against them in January of 2007 relating to the various infractions. Their cases were scheduled to be heard in the Justice of the Peace Court in May 2007.[1] Over the course of the next five months, the OCE sent the Shipleys three “abatement letters,” indicating that if the property was not brought into compliance, the County would abate the violations pursuant to Title 9, section 2907.[2] The violations were

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not remedied and, in June 2007, the County abated the violations, incurring $3,998.40 in expenses. As provided by Section 2907(b), these expenses became a tax lien on the Shipleys’ property, which was recorded and subject to collection in the same manner as other County real estate taxes. Thus, if the lien was not satisfied, the property could be sold at a sheriffs sale. After repeated notices to the Shipleys demanding payment of the expenses incurred were ignored, the County filed a monition in Superior Court on October 5, 2007. The monition accurately described the Shipleys property by address, parcel number, and lot size, and described the amount owed as “ABATEMENT COSTS/TAXES.”

The monition was issued on October 11, 2007 and posted on the property one week later. The Shipleys’ property was originally scheduled to be sold at a sheriffs sale on January 8, 2008; however Rochelle Shipley filed an emergency motion to stay on January 3, alleging that the County did not have authority to proceed. Mrs. Shipley did not raise any concerns regarding the property description at that hearing. On January 18, the Superior Court denied the motion. John Shipley filed two motions for reconsideration of the court’s January 18 order, neither of which addressed any concern regarding the property description.

On April 18, 2008, the County filed with Prothonotary a request that a writ of venditioni exponas monition be issued to the Sheriff of New Castle County, claiming that $3,998.40 was due. Page two of the writ accurately described the Shipleys property by address, parcel number, and lot size. However, attached to the praecipe was a description of the property to be sold, describing the property by parcel number and metes and bounds. Both of these descriptions included incorrect information: the parcel number listed was 10-020.30-052 — which referenced a parcel located two miles away — and the metes and bounds description indicated a smaller parcel within the Shipleys’ property. However, the parcel for sale was correctly described as “BEING THE SAME PREMISES which Clarence Frederick Wilson and Mabel Gertrude Wilson . . . did grant and convey unto John S. and Rochelle D. Shipley in fee”; and “ALL THAT CERTAIN LOT, piece or parcel of land with any buildings or improvements thereon erected, known as 609 Wildel Avenue, New Castle County, State of Delaware.” In addition, the directions attached to the list of properties being sold at the June 10, 2008 Sheriffs sale cautioned bidders that they “MUST RESEARCH THE PROPERTY AT THE RECORDER OF DEEDS OFFICE. . . .”

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The Shipleys’ property was scheduled to be sold at a sheriffs sale on June 10, 2008. On June 6, the Shipleys filed an emergency motion to stay the sale, which was denied the same day by the Superior Court. The property was sold on June 10 for $71,000 and the purchaser assigned his bid to Carello Development, LLC (“Carello”). Carello then requested a Sheriffs deed, describing 609 Wildel Avenue in its entirety and by its correct parcel number. The Sheriff executed the deed as requested.

Following the sale, the Shipleys filed numerous motions and/or letters requesting that the court overturn or reopen its ruling. Each of these were denied. On October 15, 2008, over four months after their property was sold and one month after the redemption period, the Shipleys filed a motion to set aside the sheriffs sale of their property. In this motion, the Shipleys for the first time raised a concern regarding the description of the property in the writ; however they made no mention of error in the parcel number.

The Superior Court denied the motion on October 27, 2008, finding that it was untimely and failed to present any evidence that the Shipleys did not have notice of the sale, had been denied due process, or had suffered fundamental unfairness. The court also noted that there was no evidence that the erroneous description had suppressed bidding on the property. This appeal followed.

II. Discussion
The Superior Court has broad discretion to confirm or set aside sheriffs sales.[3] Accordingly, we review such decisions for abuse of discretion.[4] We will accept the facts as determined by the trial court unless they are “clearly wrong.”[5] To the extent that the Shipleys’ present arguments not raised in the Superior Court, those arguments are waived.[6]

Under Superior Court Civil Rule 60(b)(6), a final order may be set aside for “any other reason justifying relief from the operation of the judgment.”[7] Relief under Rule 60(b)(6) is an extraordinary remedy which requires a showing of “extraordinary circumstances.”[8] The Superior Court’s decision whether to reopen a final judgment is a matter within the sound discretion of the trial judge.[9]

A. The Superior Court did not abuse its discretion in denying the motion to set aside the sheriffs sale because of the description of the property.

The Shipleys contend that the Superior Court erred in denying their motion because the sheriffs sale bill contained the wrong description and parcel number for their property. They assert that these errors caused confusion and, as a result,

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did not “promote bidding” on the property at the sheriffs sale. In response, the County and Carello contend that the Shipleys did not raise the issue of the erroneous parcel number at the Superior Court level and, in fact, stated that there was “no doubt” that the parcel number specified on the sheriffs notice covered the entire property. In addition, although they concede that the sheriffs sale bill did not contain a full description of the property, they contend that the Shipleys have failed to set forth any facts which demonstrate that this “minor clerical error” violated their due process rights.

The purpose of the notice of sale and the advertising is to apprise the public and potential bidders of the sale and promote bidding.[10] In the past, Delaware courts have set aside sheriffs sales for errors made in advertising the property for sale. For example, in Smith v. Wright, [11] this Court set aside the sale of goods which were not permitted to be viewed at the sheriffs sale. Similarly, in City of Dover v. Hunter, [12] the Superior Court set aside a sheriffs sale when the parcel number used to advertise the property for sale was off by one number. However, that error caused the City to apply the taxes paid by the owner to the incorrect parcel number, which, in turn precipitated the sheriffs sale and excused the owner’s failure to object to the sale prior to confirmation.[13] Moreover, the court found that, while the high bid at the sale was only $2,450, the property was worth at least $160,000 and the first mortgage holders’ debt exceeded $218,000; thus, the court found that maintaining the “status quo” would result in a “windfall” to the third-party purchaser.[14] After considering the owner’s “excusable neglect” and the other “extraordinary circumstances” of the case, the court granted the owner’s Rule 60(b) motion to set aside the sale.[15]

The Shipleys also contend that in In re Downham Co., [16] the Superior Court set aside a sale for failure to advertise improvements on the property. However, there is no mention of this rationale in the opinion; rather, the court’s decision rested on the fact that it determine that the sale price was grossly inadequate.[17] In that case, the court determined that the property was sold for much less than one-half of its value, which was sufficient to “shock the sense of the Court.”[18]

Even assuming, arguendo, that the parcel number issue has not been waived in this case, the Shipleys’ argument that the Superior Court abused its discretion by not setting aside the sale lacks merit. Although it is undisputed that the sheriffs sale bill contains both the incorrect parcel number and the inadequate metes and bounds description, the errors in this case

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did not create the “extraordinary circumstances” that were present in Hunter. It is undisputed that the bill contained the proper address and stated that it was the same parcel conveyed to the Shipleys by deed dated July 19, 1978. Therefore, a review of the sheriffs sale bill would have led a potential bidder, after sufficient research, to believe that the entire parcel at 609 Wildel Avenue was for sale. In fact, Carello understood the entire parcel was for sale and requested a sheriffs deed with the correct parcel number and the full description of 609 Wildel Avenue.

Moreover, the Shipleys presented no evidence to the Superior Court indicating that bidding was chilled as a result of the erroneous description or that the sale price is otherwise grossly inadequate. Unlike either Hunter o Downham, there was no evidence that the sale price was grossly inadequate. To the contrary, the court expressly found that the sale had “spirited bidding” and $71,000 was a “substantial bid.” On the facts of this case, the Superior Court did not abuse its discretion in denying the Shipleys’ motion to set aside the sale.

B. The Superior Court was not clearly wrong in finding that the Shipleys did not pay their “taxes.”

The Shipleys contend that the Superior Court erred in finding that the Shipleys failed to pay their property taxes for the years 2006 and 2007, which were the subject of the monition. They assert that the County’s records indicate that the 2006 property taxes for 609 Wildel Avenue were paid by July 23, 2007 — before the monition was filed — and that the 2007 taxes were paid on February 14, 2008 — after the monition was filed, but before the sheriffs sale.

This argument stems from a basic confusion on the part of the Shipleys as to the nature of the lien upon their property. The $3,998.40 debt that precipitated the sheriffs sale represented the expenses incurred by the County in abating the Code violations on the property. Pursuant to Section 2907, the Shipleys were required to reimburse the County for these expenses and the debt was recorded against the property as a tax lien. When the assessments were not paid they were subject to collection through the monition process in the same manner as taxes.[19] The court, in referencing this debt in its decision, used the term “taxes”; however it is clear that the intended reference was to the outstanding lien on the property for the unpaid assessments.

C. The Superior Court did not err in finding that the Shipleys motion under Rule 60(b) was “untimely.”

The Shipleys contend that the Superior Court erred in denying their motion, in part, because it was untimely. They assert that a motion under Rule 60 has “no limit of time.” This argument ignores the effect of confirmation of a sheriffs sale by the Superior Court.

When land is sold under a vend. exp. or other appropriate execution process and there are no objections made to the sale, the sale is confirmed at the return term of the writ, as a matter of course, without any act or decree of the court; and a sale so confirmed is final in its character and effect, and cannot afterwards be inquired into, nor can its validity be controverted collaterally. By the rules of the court, applications to set aside sheriffs’ sales must be made on or before

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the first Thursday of the term to which the writs are returned, and all sales not objected to on or before the first Thursday, are on the first Friday, confirmed as a matter of course.[20]

In Deibler v. Atlantic Properties Group, Inc., [21] we observed that, although the timing of confirmation has been modified, Judge Woolley’s statement regarding the effect of confirmation continues to be good law. It has long been recognized that objections to a sheriffs sale are waived as untimely if not asserted prior to confirmation.[22]

However, this rule is not absolute. Because a sheriffs sale is a judicial process, the Superior Court has broad power to control such sales to correct abuses or protect parties from injustice.[23] This discretionary power may be exercised even after the sale is confirmed through a Rule 60(b) motion for relief from final judgment.[24] Although there is no set time limit in which a party must file a Rule 60(b) motion, the movant must exercise diligence and act without unreasonable delay.[25] Because of the strong public interest in the finality of sheriffs sales, a presumption of unreasonable delay and lack of diligence arises after the sale is confirmed by the court. As we observed in Deibler, subsequent objections are untimely “unless the court finds lack of notice or other basis to relieve the party of the consequences of unexcused delay.”[26] Thus,

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barring such a finding, a Rule 60(b) motion to set aside a sheriffs sale after confirmation is untimely.[27]

In City of Dover v. Hunter, [28] the Superior Court set aside a Sheriffs sale on a motion under Rule 60(b) after confirmation and the redemption period. In that case, confusion caused by the city and county tax parcel numbering system resulted in the movant’s annual property taxes being assigned to the incorrect property and the city commencing a monition tax sale proceeding against the movant’s property.[29] Although the movant did not remedy the problem prior to the sale to a third party and failed to object to confirmation or redeem the property afterward, the court noted evidence that the movant believed the problem created by the mix-up in parcel tax numbers had been remedied, eliminating the need to object to the sale.[30] Accordingly, the court found “excusable neglect” on the part of the movant in not coming forward before confirmation, which formed a basis for granting the motion under Rule 60(b)(1).[31]

In addition, the court found that the sale price was grossly inadequate ($2,450 for a property worth in excess of $160,000) and would result in a windfall to the third-party purchaser, who set forth no evidence of irreparable injury if the sale was set aside. Taken in conjunction with the movant’s excusable neglect, the court found these facts constituted “extraordinary circumstances” which formed a basis for granting the motion under Rule 60(b)(6).[32]

Here, the property was sold at the sheriffs sale on June 10, 2008. No objections were filed and confirmation occurred July 11, 2008. Following confirmation, the Shipleys had sixty days to pay the debt and redeem the property.[33] The Shipleys’ Rule 60(b) motion to set aside the sale was not filed until October 16, 2008, thirty-seven days after the expiration of the redemption period, ninety-seven days after the expiration of the confirmation period, and one hundred and twenty-eight days after the sheriffs sale. During this period, the Shipleys filed numerous documents asking that the sale be set aside without raising the issue of the inaccurate descriptions, despite the fact that the same metes and bounds description had been used since October 5, 2007. In its decision, the Superior Court noted that it was denying the motion because there was no defect and the motion was untimely. Because the Shipleys’ motion alleged neither excusable neglect nor any other basis to relieve them of the consequences of unexcused delay, their objection was untimely. The Superior Court did not abuse its discretion in denying the Shipleys’ motion for relief under Rule 60(b).

III. Conclusion
The judgment of the Superior Court is AFFIRMED.

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