JOHN VAN ZYLL AND ANN FURLONG v. PHIL MITCHELL - Articles

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Posted by: Tanja Trezise on Jul 17, 2012

Court: TN Court of Appeals

Attorneys 1:

Kent Booher, Lenoir City, Tennessee for Plaintiff/Appellants John Van Zyll and Ann Furlong.

Attorneys 2:

Joe Costner, Maryville, Tennessee for Defendant/Appellee Phil Mitchell.

Judge(s): KIRBY

This appeal involves a dispute between neighbors. Plaintiffs live in a home next door to the defendant neighbor. The defendant neighbor embarked on a campaign of harassment that included, among other things, blasting an air horn in the wee hours on intermittent nights. The air horn blasts occurred on over forty nights. The plaintiffs filed the instant lawsuit against the noisome neighbor, seeking injunctive relief and compensatory damages. Summonses were issued on two occasions, but no return of summons was filed with the trial court. The defendant neighbor wrote a pro se letter to the trial court, acknowledging receipt of a notice of hearing, but no other papers, and stating that he would not appear at the hearing. After the hearing, the trial court issued an injunction and awarded a default judgment for compensatory damages to the plaintiffs. The defendant neighbor then filed a Rule 60.02 motion to set aside the judgment, based on failure to serve process. This motion was granted. Pursuant to the defendant neighbor’s motion, the trial court then dismissed the complaint. The plaintiffs now appeal, arguing that the defendant neighbor’s pro se letter constituted an appearance and that the trial court erred in setting aside the default judgment and dismissing the complaint. We affirm.

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