  IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
                        IN AND FOR NEW CASTLE COUNTY



BRIAN MICHAEL KUEHN,                        )
                                            )
       Plaintiff below/Appellant,           )
                                            )
              v.                            )    C.A. No.: CPU4-13-001383
                                            )
ANDREW CODY COTTER                          )
and TRACY CAMPBELL,                         )
                                            )
       Defendants below/Appellees.          )


                                 Submitted: October 14, 2014
                                 Decided: November 14, 2014


William D. Fletcher, Jr., Esq.                   Brian Michael Kuehn
414 South State Street                           4676 Augustine Herman Hwy.
Dover, DE 19901                                  Earleville, MD 21919
Attorney for Appellee                            Appellant, Pro se


                         ORDER ON PLAINTIFF’S MOTIONS

       This matter is before the Court on Plaintiff's post-trial motions. Plaintiff-Below,

Appellant (hereinafter, "Kuehn") moves for the Court to reconsider its decision denying his

motion to strike, his motion for summary judgment, and its decision following trial finding

for the defendant.

       This case arises from Kuehn's attempt to collect from Defendant-Below, Appellees

Andrew Cotter (hereinafter, "Cotter") and his mother, Tracy Campbell (hereinafter,

“Campbell”) an alleged debt in the amount of $750.00. The Complaint alleges that on
March 16, 2011, Kuehn loaned cotter, a minor under 6 Del. C. § 2705, $5,650.00 to purchase

a vehicle. It further alleged that Cotter made two payments and then failed to pay the

balance due. Kuehn filed suit to recover the remaining $750.00 balance.

       Trial was held on September 17, 2014. Kuehn dismissed the claim against Campbell

with prejudice, at the beginning of trial, proceeding only against Cotter. Kuehn did not

testify. He called Cotter as his first witness who testified that while a student in high school,

he obtained a job with Kuehn and his partner, Jeffrey Bruette ("Bruette") at their company,

Great Big Stuff. Cotter testified that he became close with Kuehn and Bruette. That during

this relationship, they would on numerous occasions pick him up from school and take him

to their apartment in Maryland where they engaged in sexual activity. As their relationship

progressed, Kuehn and Bruette were made aware that Cotter needed a reliable vehicle to

commute to work and school. Cotter testified that Kuehn and Bruette assisted him in

acquiring the vehicle by providing him a loan to purchase the vehicle. However, Cotter

testified that the debt was paid in full and Kuehn accepted final payment from Campbell to

settle the debt.

       Upon repeated questioning, Cotter steadfastly maintained that there was no balance

due on the loan. He further testified that Kuehn brought this claim only after the police

were notified by his mother of the sexual relationship. Not only did Kuehn not testify

regarding the debt, he also did not present any documentation to support his claim. Kuehn

based his entire case on the pleadings during the course of this litigation.

       The defense called Tracy Campbell who testified that during a telephone call, Kuehn

told her no balance was due on the loan. She further stated she was not present when the


                                                2
vehicle was purchased, and someone forged her signature to purchase the vehicle for her

son. Additionally, she was not contacted regarding the amounts claimed until she was served

with a complaint in the case.

          Campbell testified her son called her from high school and when she picked him up,

he told her of the sexual relationship with Kuehn. Thereafter, following his arrest in the

State of Maryland for Kuehn’s relationship with a minor, he brought this action. Betty

Cullen, the grandmother of Cotter, testified that she was present for the conversation

between Kuehn and Campbell. Cullen testified she heard Kuehn state that the debt would

be satisfied after Campbell made the $1,000.00 payment. Campbell testified that following

this conversation, she went to the bank, withdrew $1,000 and paid Kuehn

          Following the hearing which Kuehn did not testify nor present any evidence of a

loan, I concluded the evidence failed to prove by the preponderance of the existence of a

debt. Judgment was entered in favor of Cotter.



                                              DISCUSSION

           1.      Motion For Reargument Pursuant To Court Of Common Pleas
                                     Civil Rule 59(e)
          Kuehn moves for Reargument pursuant to Court of Common Pleas Civil Rule 59(e).

A motion for reargument is limited to “reconsideration by the Trial Court of its findings of

fact, conclusions of law, or judgment.”1 “A motion for re-argument is granted only if ‘the

Court has overlooked a controlling precedent or legal principles, or the Court has

misapprehended the law or facts such as would have changed the outcome of the underlying

1
    Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969).
                                                  3
decision.’”2 “A party seeking to have the trial court reconsider [an] earlier ruling must

demonstrate newly discovered evidence, a change in the law or manifest injustice.”3 “[T]he

Court will not entertain new arguments by the parties raised for the first time in a motion for

re-argument.”4 A motion for re-argument will generally be denied absent abuse of discretion

by the trial court.5   The facts in this case are clear and compelling. There is no basis for

reargument and it is denied.

       2.      Motion to Strike

       Kuehn contends that the Court misapprehended the law when it denied his motion

to strike Cotter and Campbell’s pleading opposing his motion for summary judgment.

Additionally, he argues the Court should have granted his motion for judgment for failure to

prosecute, contending that their failure to timely file their opposition to the motion is

jurisdictional. This argument lacks merit because failure to timely file or respond to a

pleading does not raise jurisdictional issues. Delaware law is well settled that “a defendant's

failure to file a timely response to a pleading does provide a basis for the court without more

to enter a default judgment.”6 Although Appellants’ opposition was admittedly untimely, it

must be analyzed in light of the “strong judicial policy of deciding cases on the merits.” 7 As


2
  State Farm Fire & Cas. Co. v. Middleby Corp., 2011 WL 2462661, at *2 (Del. Super. June 15,
2011). (Quoting Kennedy v. Invacare Corp., 2006 WL 488590, at *1 (Del. Super. Jan. 31,
2006)).
3
  Parisan v. Cohan, 2012 WL 1066506, at *1 (Del. Com. Pl. Mar. 29, 2012).
4
  Wilmington Trust Co. v. Nix, 2002 WL 356371, at *1 (Del. Super. Feb. 21, 2002).
5
  Parisan, 2012 WL 1066506, at *1.
6
 Pinkett ex rel. Britt v. Nationwide Mut. Ins. Co., 832 A.2d 747, 750-51 (Del.Super. 2003).
7
 Verizon Delaware, Inc. v. Baldwin Line Const. Co., Inc., CIV.A.02C-040212JRS, 2004 WL
838610, at *1 (Del. Super. Apr. 13, 2004).


                                              4
such, in determining whether to strike a responsive pleading, it is within the Court’s

discretion to consider the circumstances surrounding the late filing. Therefore, I find no

basis to reconsider this matter.

         3.      Motion for Summary Judgment

         Kuehn further argues that the Court has overlooked facts that would change the

outcome of the underlying motion when it denied his motion for summary judgment,

contending that the Court erred when it held “there still exists the question of the amount

due.”8 Kuehn contends that in the pleadings, Cotter and Campbell did not dispute the

amount of damages pled in the complaint, and thus there is no dispute that Kuehn is owed

$750.00. This position is not supported by the facts. At every stage of the proceeding,

Cotter and Campbell disputed the amount claimed.

         Additionally, at trial, Cotter, Campbell, and Cullen testified that Kuehn stated during

a telephone conversation that the debt would be satisfied after Campbell paid the $1,000.00.

Accordingly, Kuehn’s motion for reargument on the motion for summary judgment is

denied.

         4.      Motion for Judgment for Failure to Prosecute

          Kuehn also argues that the Court erred when it denied his Motion for Judgment for

failure to Prosecute, relying on his jurisdictional argument. This matter is considered above.

I find no basis or merit for this argument and it is denied.




8
    Corrected Order on Pl.’s Motions, p.3 ¶2.
                                                5
            5.       Motion For New Trial Pursuant To Court Of Common Pleas
                                     Civil Rule 59(B)
          The last motion made by Kuehn is for a new trial pursuant to Court of Common

Pleas Civil Rule 59(b) which provides in part, “A new trial may be granted to all or any of

the parties and on all or part of the issues in an action in which there has been a trial for any

of the reasons for which new trials have heretofore been granted in this Court.”9 Kuehn

alleges that the Court, in finding in favor of Cotter and against Kuehn, is against the weight

of evidence. This argument fails to take into consideration that Kuehn presented no direct

evidence of the amount claimed, and the testimony of the Defendant and the other

witnesses, that the debt was paid in full

          Accordingly, the motion is DENIED.



                                            SO ORDERED



                                            ___________________________
                                            Alex J. Smalls
                                            Chief Judge

Kuehn-ORD Nov 2014




9
    Ct. Com. Pl. Civ. R. 59(b).
                                               6
