June 30, 2015
MICHELLE A. DURR, APPELLANT
CITY OF PICAYUNE, MISSISSIPPI, APPELLEE
FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT. TRIAL
JUDGE: HON. ANTHONY ALAN MOZINGO. TRIAL COURT DISPOSITION:
SUMMARY JUDGMENT FOR THE CITY OF PICAYUNE GRANTED.
APPELLANT: JULIE ANN EPPS; E. MICHAEL MARKS.
APPELLEE: EDWARD C. TAYLOR; JOHN MICHAEL MCMAHAN.
GRIFFIS, P.J., CARLTON AND JAMES, JJ. LEE, C.J., IRVING,
P.J., ROBERTS, FAIR AND JAMES, JJ., CONCUR. CARLTON, J.,
CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION, JOINED BY BARNES AND ISHEE, JJ. MAXWELL, J., NOT
Michelle Durr filed a lawsuit for injunctive relief and for
damages suffered when the City of Picayune allegedly
improperly rezoned her commercial property to residential.
The circuit court granted the City's motion for summary
judgment finding Durr failed to exhaust her administrative
remedies. Durr appeals the summary-judgment order and asserts
the circuit court erred when it failed to grant a default
judgment in favor of Durr. We reverse and remand for further
AND PROCEDURAL HISTORY
In 2008, Durr purchased a building on Gray Avenue in the City
of Picayune. The building, previously used as a furniture
store, sat adjacent to Durr's other building, on Canal
Street, where Durr operated a hair salon. Durr intended to
renovate the new building and turn it into a sandwich shop.
According to Durr, the former owner of the building and a
zoning map both showed the property was zoned as C-2 for
commercial use. Under this assumption, Durr began renovations
for her sandwich shop.
Durr obtained a commercial-property loan and began
renovations. During this time, several city officials and
departments, including the fire marshal, the police
department, and the engineering department, all required Durr
to comply with certain specifications necessary for a
commercial restaurant. Durr complied with these requirements
during the renovation process.
On March 29, 2009, Durr filed an application with the City to
combine the Gray Avenue and Canal Street properties into one
commercial lot. The City Council denied the request on April
7, 2009, and Durr did not appeal this decision. Despite this
denial, Durr continued work on the Gray Avenue building until
2012, spending approximately $70,000 over four years.
On April 3, 2012, the City Council approved a new zoning map.
The new zoning map classified the Gray Avenue property as
residential, not commercial. Coincidentally, Durr placed the
Gray Avenue property on the city council agenda for that
date, but did not seek any action on the property. Durr
subsequently learned of the new zoning map when her
contractor attempted to apply for building permits after a
break in renovations due to lack of funds. To continue work
on the building, City officials told her she needed to apply
for a zoning change from residential to commercial for the
Rather than attempt to rezone the property, Durr filed a
lawsuit under the Mississippi Tort Claims Act (MTCA) in Pearl
River County Circuit Court against
the City, the mayor, and individual city council members on
July 20, 2012. Durr's complaint alleged that she suffered
damages due to the City's actions in representing the
property as commercial. Durr also argued the City
unconstitutionally rezoned the property to residential
without notice or a hearing, and she requested an injunction
to prevent the rezoning from taking effect.
On August 16, 2012, Durr served the City, councilmen, and
mayor. However, none of the defendants filed a timely
responsive pleading. On November 9, 2012, Durr filed: (a) an
application to the clerk for an entry of default and a
supporting affidavit, (b) a motion for a default judgment and
to set damages, and (c) a notice of hearing for the motion
for a default judgment. In her motion, Durr cited that the
City, councilmen, and mayor failed to file any responsive
pleadings within thirty days of receiving proper service of
process under Mississippi Rule of Civil Procedure 12(a).
Despite Durr's motions, the clerk did not submit an entry
A hearing on the request for a default judgment was noticed
for January 7, 2013. On January 4, 2013, Nathan S. Farmer,
attorney for the City at the time, filed combined answers and
affirmative defenses for all defendants. At the January 7,
2013 hearing, the circuit court did not consider the motion
for a default judgment. Instead, the parties stipulated to an
agreed order dismissing all defendants except for the City,
and waiving a defect in Durr's MTCA notice letter.
On January 24, 2013, the circuit judge signed the agreed
order that dismissed the individual defendants, and held the
tort-claims letter was sufficient in time and language. The
court held the letter " is hereby adjudicated to be
complete, timely[,] and not premature pursuant to
[Mississippi Code Annotated] section 11-46-11 [(Rev. 2012)] .
. . ."
On April 22, 2013, Edward C. Taylor and John M. McMahan of
the firm of Daniel, Coker, Horton and Bell, P.A., entered an
appearance for the City.
On June 12, 2013, the City filed a motion for summary
judgment. In the motion, the City alleged that Durr failed to
exhaust all administrative remedies before filing suit, could
not rely on a facially invalid permit, did not comply with
the MTCA, and failed to demonstrate facts that the City
unconstitutionally changed the zoning of the Gray Avenue
On August 28, 2013, the City served a notice for a hearing on
the City's summary-judgment motion setting the hearing
for September 27, 2013. Durr filed her response to the motion
for summary judgment, including documents and affidavits, on
September 4, 2013. Thereafter, the City noticed depositions
and noticed for a hearing its motion to continue the trial,
also set for September 27, 2013.
The hearing occurred on October 1, 2013, rather than
September 27, 2013. At the hearing, the court identified the
subject of the hearing as the motion for summary judgment
filed by the City. Taylor was recognized and allowed to argue
the motion for summary judgment. At the conclusion of the
argument, the court recognized Marks for a response. Although
Marks did not notice the motion for a default judgment for a
hearing that day, he proceeded to present facts that were
related to the motion for a default judgment rather than the
On October 22, 2013, the circuit court executed an order that
granted the City's motion for summary judgment without
prejudice. The order did not specifically address Durr's
motion for a default
judgment, but in effect denied such a motion. Durr now
appeals this judgment.
Whether the circuit court erred in not entering a default
judgment in favor of Durr when the City of Picayune failed to
show cause for its untimely responsive pleading.
Durr first argues the circuit court erred when it did not
enter a default judgment against the City after the City
failed to file a responsive pleading within thirty days of
service of process or give good cause for the untimely
response. The City counters that the clerk failed to submit
an entry of default, making the circuit court's implicit
refusal of a default judgment proper. The City does not,
however, address the issue of its untimely response to the
Mississippi Rule of Civil Procedure 55 dictates the
requirements for a default judgment. Rule 55(a) provides:
" When a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend as
provided by these rules and that fact is made to appear by
affidavit or otherwise, the clerk shall enter his
default." M.R.C.P. 55(a) (emphasis added).
Rule 55(a) mandates entry by the clerk upon sufficient
documentation. If a plaintiff presents an application for
entry of default with supporting documentation, the clerk
must place an entry of default on the docket. " The Rule
does not offer any room for discretion. When a party does not
plead or otherwise defend a claim, the clerk is directed to
enter a default." Lexington Ins. Co. v.
Buckley, 925 So.2d 859, 870 (¶ 48) (Miss. Ct.App.
The record clearly indicates that Durr filed the proper
application for an entry of default, with a supporting
affidavit showing the City did not file a responsive pleading
or otherwise defend against Durr's complaint in any
manner, within the time prescribed by the rules. Nonetheless,
the clerk did not enter a default on the docket.
At the January 7, 2013 hearing, Marks and Farmer appeared
before the circuit court judge. Marks set the hearing for the
purposes of hearing the motion for a default judgment and to
set damages. However, Marks did not argue that the entry of
default was proper, the circuit clerk erred in not entering
the default, or the circuit court should require an entry of
default be made by the clerk. Instead, the following
THE COURT: Did you gentlemen have an announcement?
MR. MARKS: Judge, we just had a stipulation, subject to your
THE COURT: I'll be happy to hear it.
MR. MARKS: Counsel opposite just had a chance to file an
answer on Friday. He's not going to be the attorney for
the case. Watkins and Eager, I believe, in Jackson is.
MR. FARMER: Our insurance carrier, since they are asking for
monetary relief in the complaint, Your Honor, usually that
goes to the City's insurance carrier. I don't know
why the carrier hasn't answered it. I talked to our
adjuster, Mr. Jack Holmes. So I've sent -- I forwarded a
copy of what needs to be -- what he has to do to prepare his
case. It's forwarded onto that. We have a series of law
firms that handle that for the City through our carriers. The
thing about it is, Your Honor, in that when I did talk to Mr.
Marks, we're going to enter a summary agreement, but I
told him I couldn't go into a far-reaching agreement,
because I don't want it to prejudice --
THE COURT: Well, let me hear what he thinks the agreement is.
MR. MARKS: The only thing, Judge, was the tort claim
letter was six days early and he's agreed to recommend
that the six days be waived. It didn't quite make ninety
days. So that's the only relief I would ask you to
MR. FARMER: Your Honor, in other words, he filed before the
90 days expired under the Tort Claims Act. And I don't
have a problem waiving that for him. The other thing is, I
believe we're going to also dismiss the mayor and
individual councilmen. They've been sued in their
individual capacities. I believe they are going to dismiss
THE COURT: Would since you are the moving party, or might as
well be, and the one that is being granted relief, which of
you would draft an order? I'll be happy to sign whenever
you're ready, dismissing the individual and[,] then, also
the individual councilmen, but also saying that it's
stipulated that the six days requirement is waived. And
then also we, of course, won't have any prejudice for the
failure to answer. We'll just --
MR. MARKS: May I prepare it in my office today, Your Honor,
and mail it to him?
THE COURT: Sure. Whenever you want. We're in no hurry.
MR. FARMER: That's fine, Your Honor. Thank you, Your
THE COURT: All right. We appreciate meeting you and thank
MR. FARMER: Thank you, Judge.
MR. MARKS: Thank you, Your Honor.
Rather than argue for a default judgment, Durr's counsel
entered a stipulation with the City's attorney to dismiss
certain defendants and to adjudicate the sufficiency of the
tort-claims notice letter. Both of these actions are contrary
to a default judgment and indicate Durr's decision to
abandon her motion for a default judgment. There is no doubt
that Durr did not ask the court to consider the motion for a
default judgment at the January 7 hearing.
Another hearing, set for September 27, but held on October 1,
was noticed this time by the City, to consider the City's
motion for summary judgment. Durr's counsel did not
notice the motion for a default judgment for a hearing.
Instead, at the beginning of Marks's argument, he
proceeded to address the motion for a default judgment rather
than argue against the City's motion for summary
judgment. Marks stated:
So I have brought with me today, Your Honor, in the form of
an oral motion, ask [sic] for a setting on a hearing for
damages only. And that you not only set a time date [sic],
but that you grant this motion ore tenus for [a] hearing on
the damages as set forth in our original pleading.
the following was said:
MR. MARKS: Judge, I suppose there's always one more
thing. And I thank you for letting us bifurcate this, but I
did want to comment until this day, there's not been a
motion to set aside the default judgment.
THE COURT: Okay. That's probably because I don't
think one has been filed, entered, but nevertheless.
MR. TAYLOR: Your Honor, I wasn't aware of any default
THE COURT: I don't think there is one. But go ahead . . .
[¶23] A default judgment may not be granted
without the entry of a default. M.R.C.P. 55. However, in this
appeal, Durr asks this Court to do something that she has not
asked the circuit court to do. We can find no point in the
record where Durr asked the circuit court to direct the
circuit clerk to enter a default against the City. We can
also find no point in the record where Durr brought the
motion for a default judgment before the circuit court for
consideration and a decision. The only possible time was on
October 1 when she made an " oral motion."
Durr claims the circuit court's failure to grant her
default judgment constitutes reversible error. We reject this
argument because we do not find where she brought this matter
to the attention of the circuit court for consideration and a
decision. Further, we find that when the motion for a default
judgment was properly noticed for a hearing and counsel was
before the circuit judge, Durr stipulated to the dismissal of
several defendants and the adjudication of the legal
sufficiency of the tort-claims demand letter. This was
inconsistent with her claim that a default judgment was
proper, and we find it to be an abandonment of the motion for
a default judgment. Accordingly, we find no merit to this
Whether the circuit court erred in granting summary judgment
to the City of Picayune based on Durr's failure to
exhaust administrative remedies.
Next, Durr argues that the circuit court erred when it
granted the City summary judgment on the basis that Durr
failed to exhaust all administrative remedies available to
her. Durr contends, however, that any administrative remedies
would be futile and unfair because the City
unconstitutionally rezoned her property. Additionally, Durr
argues the suit involves tort damages under the MTCA, not the
zoning decision, which no administrative remedy could
redress. Alternatively, Durr maintains she presented a
genuine issue of material fact for trial, which renders
summary judgment improper.
" We review the grant or denial of a motion for summary
judgment de novo, viewing the evidence in the light most
favorable to the party against whom the motion has been
made." Karpinsky v. Am. Nat'l Ins. Co., 109
So.3d 84, 88 (¶ 9) (Miss. 2013). This Court will affirm
the grant of summary judgment " if the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue of material fact and that the moving
party is entitled to a judgment as a matter of law."
Further, the question of the exhaustion of administrative
remedies is a jurisdictional question, which requires a de
novo review as well. Town of Bolton v. Chevron Oil
Co., 919 So.2d 1101, 1104 (¶ 9) (Miss. Ct.App.
2005). " A complainant must exhaust available
administrative remedies before resorting to the courts for
resolution of his dispute." State v. Beebe, 687
So.2d 702, 704 (Miss. 1996). The exception to the general
rule is that " when no adequate administrative remedy is
available, exhaustion is not required." Town of
Bolton, 919 So.2d at 1105 (¶ 10) (citing
Campbell Sixty-Six Express Inc. v. J& G Express
Inc., 244 Miss. 427, 440, 141 So.2d 720, 726 (1962)).
The City argues Durr failed to properly exercise her
administrative remedies as provided in Mississippi Code
Annotated section 11-51-75 (Rev. 2012). Section 11-51-75
provides in relevant part:
Any person aggrieved by a judgment or decision of the board
of supervisors, or municipal authorities of a city, town, or
village, may appeal within ten (10) days from the date of
adjournment at which session the board of supervisors or
municipal authorities rendered such judgment or decision, and
may embody the facts, judgment and decision in a bill of
exceptions . . . . [T]he [circuit] court shall . . . hear and
determine the same on the case as presented by the bill of
exceptions as an appellate court, and shall affirm or reverse
Durr alleges the City improperly rezoned the Gray Avenue
property when it adopted a new zoning map that showed the
Gray Avenue property as residential. According to Durr, this
de facto rezoning occurred without notice or a hearing, which
rendered the action illegal under Mississippi Code Annotated
section 17-1-17 (Rev.2012),and resulted in a due-process
violation. Section 17-1-17 requires at least fifteen
days' public notice prior to a hearing on any zoning
In opposition, the City maintains the adoption of the
rezoning map did not actually rezone the Gray Avenue property
because the property was always zoned as residential.
However, if the city council did not rezone the Gray Avenue
property, then Durr cannot seek administrative redress as the
City contends. The only zoning decision Durr could have
appealed through the administrative process would have been
the denial of her request to combine her properties into one
commercial lot. Though Durr did not appeal that decision,
that decision is not the subject of Durr's lawsuit.
Instead, Durr argues the City did rezone the Gray Avenue
property, and did so without a proper notice and hearing.
Potentially, Durr could pursue administrative relief through
an application to rezone the property. However, if the City
unconstitutionally rezoned the property as Durr contends, any
attempt to rezone the property would be unnecessary, as any
unconstitutional rezoning is void. Thus, Durr may meet an
exception to the requirement of exhausting her administrative
" The exhaustion doctrine is not without its
exceptions." Pub. Emps' Ret. Sys. of Miss.
(PERS) v. Hawkins, 781 So.2d 899, 906 (¶ 31) (Miss.
[F]actors which weigh against applying the doctrine of
exhaustion include: the pursuit of the administrative remedy
would result in irreparable harm; the agency clearly lacks
jurisdiction; the agency's position is clearly illegal;
the dispositive question is one of law; exhaustion would be
futile; and comparatively, the action can be disposed of with
less expense and more efficiently in the judicial arena.
Id. (citing Miss. Dep't of Envtl. Quality v.
Weems, 653 So.2d 266, 278 (Miss. 1995)).
This uncertainty underlies the primary question of whether
the circuit court properly granted summary judgment. Durr and
the City clearly disagree on the zoning status of the Gray
Avenue property prior to the adoption of the 2012 map. The
parties also contest whether the adoption of the map
constituted a rezoning procedure. Based on these significant
points of contention, a genuine dispute of material facts
exists. Durr and the City both provided evidence to support
their respective claims. Thus, the circuit court erred in
granting summary judgment for the City.
Because we find a genuine issue of material fact exists
regarding the zoning status of the Gray Avenue property prior
to 2012 and the effect of the adoption of the zoning map, we
reverse and remand this case for further proceedings.
THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER
COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO THE APPELLEE.
C.J., IRVING, P.J., ROBERTS, FAIR AND JAMES, JJ., CONCUR.
CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION, JOINED BY BARNES AND ISHEE, JJ.
MAXWELL, J., NOT PARTICIPATING.
J., CONCURRING IN PART AND DISSENTING IN PART:
I respectfully concur in part and dissent in part from the
majority's opinion. I agree with the portion of the
majority's analysis that finds that Durr abandoned her
motion for a default judgment. However, I disagree with the
majority's analysis regarding jurisdiction and Durr's
standing to appeal, and I disagree with the disposition of
the majority because I would affirm the circuit court's
grant of summary judgment in this case. The circuit court
lacked jurisdiction since Durr failed to comply with the
following: (1) the requirements of Mississippi Code Annotated
section 11-51-75 (Rev. 2012) for appealing a decision of a
governing municipal board; and (2) the administrative zoning
procedures required to obtain a decision from the city
I turn to the record for support for my finding that the
circuit court's grant of summary judgment was proper. The
record reflects that Durr failed to comply with the required
procedures to obtain a decision for her zoning request, and
therefore, she obtained no decision from the city council
from which to appeal. The circuit court thus failed to obtain
appellate jurisdiction over this case from the local
governing council. In the absence of a final decision by the
city council, Durr's allegations fail to raise a cause of
action. See Miss. Code Ann. § 11-51-75. See
also Newell v. Jones Cnty., 731 So.2d 580, 582
(¶ 10) (Miss. 1999) (finding that the ten-day appeal
period in section 11-51-75 is both mandatory and
jurisdictional); Sanford v. Bd. of Supervisors, Covington
Cnty., 421 So.2d 488, 490-91 (Miss. 1982) (finding that,
to vest appellate jurisdiction in the circuit court, there
must be a final decision of the board from which to appeal).
On January 4, 2013, all the Defendants filed combined answers
and affirmative defenses. In their combined answers, the
Defendants included as defenses the following: (1) Durr
failed to state a claim upon which relief could be granted;
(2) the circuit court lacked subject-matter and personal
jurisdiction; (3) service of process was insufficient
pursuant to Rules 12(b)(4)-(5) of the Mississippi Rules of
Civil Procedure; (4) the statute of limitations, res
judicata, sovereign immunity, and Mississippi Code Annotated
section 11-46-11 (Rev. 2012) barred Durr's claims.
Like the Defendants' answer, the summary-judgment motion
filed by the City of Picayune (the City) asserted that it was
entitled to summary judgment because Durr " failed to
state a cause of action upon which relief may be
granted." Specifically, the City argued: (1) Durr failed
to first exhaust the administrative remedies available to
her; (2) Durr could not " rely on a facially invalid
permit (if a permit was ever granted) as she [was] imputed
with constructive notice" of the zoning ordinances; (3)
Durr failed to sufficiently plead a cause of action for
reverse condemnation; (4) the statute of limitations barred
any claim Durr might possess pursuant to the MTCA; and (5)
Durr failed to sufficiently plead that the rezoning of her
property was justified.
[¶40] As acknowledged, I agree with the
majority that Durr abandoned her motion for a default
judgment. Durr filed notice of a hearing with
the circuit court, and the hearing on the motion for a
default judgment was to be held on January 7, 2013. However,
the Defendants filed their combined answers and affirmative
defenses on January 4, 2013, and then Durr entered into an
agreed order with the Defendants. The transcript of the
January 7, 2013 proceedings reflects that the parties
appeared before the circuit court judge and presented him
with an agreed order. The agreed order dismissed the
individual councilmen and stated that the City agreed to
waive Durr's premature filing of her case prior to the
expiration of the ninety-day notice period required by the
MTCA. The January 7, 2013 transcript also reflects that the
circuit court acknowledged at the hearing that no prejudice
arose from the Defendants' late answer.
I disagree, however, with the majority's decision to
remand this case to the circuit court since no jurisdiction
vested in the circuit court regarding any decision by the
city council determining the merits of the municipal-zoning
conflict at issue. As our precedent establishes, there must
be a final order or final decision by the municipal board
deciding the merit of the issues in controversy to vest a
circuit court, and this Court, with appellate jurisdiction.
See Sanford, 421 So.2d at 490-91; Miss.
Code Ann. § 11-51-75.
In the present case, Durr failed to show that a zoning change
occurred with respect to her property, and she failed to show
that she complied with the necessary procedures to obtain a
decision from the city council for a desired zoning change.
Without a decision by the city council, no jurisdiction
vested in the circuit court to review the matter.
See Miss. Code Ann. § 11-51-75.
As a result, the circuit court lacked jurisdiction in this
case, and the circuit court's decision to grant the
City's summary-judgment motion, without prejudice, was
Based on the foregoing, I respectfully concur in part and
dissent in part from the majority's opinion.
AND ISHEE, JJ., JOIN THIS OPINION.
A review of the transcript reflects that
Durr raised no objection at the January 7, 2013 hearing to
the Defendants' untimely filing of their combined
answers. As discussed by the majority, the record also
reflects that Durr failed to raise or argue her motion for
default at the January 7, 2013 hearing, and she at no time
filed any motion to strike the Defendants' answers or
affirmative defenses. I submit that Durr waived any objection
to the Defendants' untimely answer. See
McCullough v. McCullough, 52 So.3d 373, 379 (¶
25) (Miss. Ct.App. 2009) (discussing failure to object and
The circuit court possessed the discretion
to allow the Defendants' late answer and possessed the
discretion to refuse to enter a default judgment.
See City of Jackson v. Presley, 942 So.2d
777, 781 (¶ 7) (Miss. 2006). In Presley, the
Mississippi Supreme Court explained that an
abuse-of-discretion standard applies to a circuit
court's decision to allow a late answer and affirmative
defenses, but a de novo standard of review applies to an
entry of a default judgment. Id. Significantly, the
record in the present case reflects that the Defendants'
combined answers were filed prior to the entry of any default
judgment by the circuit court. Therefore, the answers were
sufficient to prevent the entry of a default judgment by the
circuit court without first giving the Defendants notice and
a hearing. See Smith v. Everett, 483 So.2d
325, 327-28 (Miss. 1986).
An entry of default, when entered on an application,
is invalid if entered without giving notice and hearing to a
party after that party has made an appearance and indicia of
defense or has submitted a denial of the allegations in the
complaint. Id.; see also Wheat v. Eakin,
491 So.2d 523, 525 (Miss. 1986) (" Once a party has made
an indicia of defense or denial of the allegations of the
complaint such party is entitled to at least
three[-days'] written notice of the application for
default judgment." ); Chassaniol v. Bank of
Kilmichael, 626 So.2d 127, 131 (Miss. 1993) (addressing
the affirmative duties of the clerk upon receiving an
application for the entry of a default judgment);
Presley, 942 So.2d at 792 (¶ 25) (finding that
a four-year delay in filing an answer was sufficient to
prevent the entry of a default judgment); M.R.C.P. Rule
55(a)-(b) (discussing default judgments and the entry
of default against a party).