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Durr v. City of Picayune

Court of Appeals of Mississippi

June 30, 2015

MICHELLE A. DURR, APPELLANT
v.
CITY OF PICAYUNE, MISSISSIPPI, APPELLEE

         DATE OF JUDGMENT: 10/22/2013.

Page 1043

          COURT 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.

         FOR APPELLANT: JULIE ANN EPPS; E. MICHAEL MARKS.

         FOR APPELLEE: EDWARD C. TAYLOR; JOHN MICHAEL MCMAHAN.

         BEFORE 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 PARTICIPATING.

          OPINION

Page 1044

         GRIFFIS, P.J.

         [¶1] 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 proceedings.

         FACTS AND PROCEDURAL HISTORY

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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 property.

         [¶6] 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

Page 1045

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.

         [¶7] 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 of default.

         [¶8] 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.

         [¶9] 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)] . . . ."

         [¶10] 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.

         [¶11] 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 property.

         [¶12] 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.

         [¶13] 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 summary-judgment motion.

         [¶14] 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

Page 1046

judgment, but in effect denied such a motion. Durr now appeals this judgment.

         ANALYSIS

         I. 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.

         [¶15] 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 complaint.

         [¶16] 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 ...


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