        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-CA-01845-COA

MICHELLE A. DURR                                                           APPELLANT

v.

CITY OF PICAYUNE, MISSISSIPPI                                                APPELLEE


DATE OF JUDGMENT:                         10/22/2013
TRIAL JUDGE:                              HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH APPEALED:                PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  JULIE ANN EPPS
                                          E. MICHAEL MARKS
ATTORNEYS FOR APPELLEE:                   EDWARD C. TAYLOR
                                          JOHN MICHAEL MCMAHAN
NATURE OF THE CASE:                       CIVIL - PROPERTY DAMAGE
TRIAL COURT DISPOSITION:                  SUMMARY JUDGMENT FOR THE CITY
                                          OF PICAYUNE GRANTED
DISPOSITION:                              REVERSED AND REMANDED: 06/30/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., CARLTON AND JAMES, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶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


                                              2
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 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


                                               3
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


                                              4
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 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


                                                5
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).

¶17.   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. 2005).

¶18.   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.

¶19.   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 occurred:

       THE COURT: Did you gentlemen have an announcement?

       MR. MARKS: Judge, we just had a stipulation, subject to your approval.


                                               6
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?

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 grant.

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 them.

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.


                                       7
       MR. FARMER: That’s fine, Your Honor. Thank you, Your Honor.

       THE COURT: All right. We appreciate meeting you and thank you.

       MR. FARMER: Thank you, Judge.

       MR. MARKS: Thank you, Your Honor.

(Emphasis added).

¶20.   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.

¶21.   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.

¶22.   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.

Then, the following was said:

       MR. MARKS: Judge, I suppose there’s always one more thing. And I thank

                                               8
       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 judgment.

       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.”

¶24.   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 issue.


                                              9
       II.    Whether the circuit court erred in granting summary judgment to the
              City of Picayune based on Durr’s failure to exhaust administrative
              remedies.

¶25.   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.

¶26.   “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.” M.R.C.P. 56(c).

¶27.   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


                                              10
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)).

¶28.   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 the judgment.

¶29.   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 change.

¶30.   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


                                              11
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.

¶31.   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 remedies.

¶32.   “The exhaustion doctrine is not without its exceptions.” Pub. Emps’ Ret. Sys. of Miss.

(PERS) v. Hawkins, 781 So. 2d 899, 906 (¶31) (Miss. 2001).

       [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)).

¶33.   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

                                             12
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.

¶34.   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.

¶35. 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.

    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.

       CARLTON, J., CONCURRING IN PART AND DISSENTING IN PART:

¶36.   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


                                              13
a decision from the city council.

¶37.   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).

¶38.   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.

¶39.   Like the Defendants’ answer, the summary-judgment motion filed by the City of


                                               14
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.1 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


       1
        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 waiver).

                                              15
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.2

¶41.   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



       2
         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).

                                             16
jurisdiction. See Sanford, 421 So. 2d at 490-91; Miss. Code Ann. § 11-51-75.

¶42.   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

proper.

¶43.   Based on the foregoing, I respectfully concur in part and dissent in part from the

majority’s opinion.

       BARNES AND ISHEE, JJ., JOIN THIS OPINION.




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