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 ...