motion for default

8/19/2019 Motion for default

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STATE OF NORTH CAROLINA FI L E D IN THE GENER AL C OUR T OF JUSTICE

S U P ER I O R C O U R T

D I V I S I O N

C O U N T Y

O F

B U N C O M B E 1 5 - C V S- 4 6 6 9

im M R - P 2: 3 I

CITY OF ASHEVILLE, a North )

Carolina Municipal

CorporationB

UNG

.....

i

^ J.. C

jify OF

ASHEVILLE S

MOTION FOR

i tE FA U L T J U D G M EN T AS TO

laintiff

'

Y_

V

GERALD D. SCOTT JR . an d

wife

SCOTT

and ASHEVILLE

RECOVERY GROUP a No rth Caro lin a

Non-Profit Corporation,

D e f e n d a n t s .

NO W

COMES Plaintiff, the City of Asheville (the City ), by and through undersigned

counsel, pursuant to North Carolina Rule of Civil Procedure 55, and respectfully moves this

Court for judgment by default against Defendants, Lydia D. Scott and Asheville Recovery Group

( Defendants ), as to all of the City s claims in the above-captioned case. The City is entitled to

judgment by default because Defendants were properly served with th e Summons and Complaint

in the above-captioned case and Defendants failed to appear and answer or otherwise plead to the

Complaint, resulting in the Clerk

of

Buncombe County Superior Court's Entry

of

Default on

February

18

2016.^

In support of this

Motion

the

City relies upon

all

pleadings

filed to date

including the City s Affidavit in Support of Motion for Entry of Default by Defendants, and

other matters of record, and the Affidavit of Shannon Tuch, Principle Planner and Zoning

D E F E N D A N T S . L YDI D . S CO T T

A N D

S HE VI L L E

R E C O V E R Y

G R O U P

A N D IN

T H E L T E R N T I VE M O T I O N F O R

S U M M R Y J U D G M E N T A S T O

D E F E N D A N T S L YDI

D .

S C O T T A N D

S H EV IL LE R E C O VE R Y G R O U P

^On

February

26, 2016 Defendant

Gerald

D. Scott Jr. filed

and

signed a Motion to SetAside

Default Judgment on behalf of Defendants, Lydia D. Scott and Asheville Recovery Group.

However, Defendant Gerald D. Scott, Jr. is not an attorney and is not licensed to practice law in

North Carolina, and, as such, he cannot appear or litigate on behalf of Defendants, Lydia D.

Scott and Asheville Recovery Group. See N.C. Gen. Stat. § 84-4.


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Administer for the City, which is being filed contemporaneously with this Motion and is

incorporated herein by reference.

Additionally, and in the alternative, should the Court hold that the City is not entitled to

judgment by default against Defendants, Lydia D. Scott and Asheville Recovery Group, the City

respectfully moves this Court, pursuant to North Carolina Rule of Civil Procedure 56, for

summary judgment against Defendants, Lydia D. Scott and Asheville Recovery Group, as to all

of the City s claims in the above-captioned case, as there is no genuine dispute as to any material

fact and the City is entitled to judgment as a matter of law. In support

of

this Motion, the City

relies

upon

all pleadings filed to date, and other matters

of

record, and the Affidavit

of

Shannon

Tuch, Principle Planner and Zoning Administer for the City, which is being filed

contemporaneouslywith this Motion and is incorporated herein by reference.

WK EREFORE

the City respectfully requests that the Court enter Default Judgment

against Defendants, Lydia D. Scott and Asheville Recovery Group, jointly and severally, and

enter an order for the following:

1. An injunction enjoining and restraining Defendants from using the property

located at 22 Brucemont Circle, Asheville, North Carolina (the Property ) to

unlawfully operate the Asheville Recovery Group and permanently enjoining and

restraining Defendants from using the Property to operate a group home in the

City s RM-8 zoning district without a Conditional Use Permit, or any other use

which otherwise violates the Unified Development Ordinance (the

UDO

without obtaining the required permits and/or permission from the City;

2. An order holding that the civil penalties assessed against Defendants are a debt

owed to the City and directing and orderingDefendants to pay the City the sum of


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the accrued penalties due from September 11, 2015 to the date the Property is

brought into comphance with the UDO;

3. All court costs nd attorneys fees; nd

4. Such other relief as the Court may deem

just

and proper.

Additionally, and in the altemative to the foregoing, the City respectfully requests that

the Court enter summary judgment against Defendants, Lydia D. Scott and Asheville Recovery

Group, jointly and severally, as to all

of

the City s claims, and enter judgment in the City s favor

for the following:

1. An injimction enjoining and restraining Defendants from using the property

located at 22 Brucemont Circle, Asheville, orth Carolina ( the Property ) to

unlawfully operate the Asheville Recovery Group and permanently enjoining and

restraining Defendants from using the Property to operate a group home in the

City s RM-8 zoning district without a Conditional Use Permit, or any other use

which otherwise violates the Unified Development Ordinance (the UDO )

without obtaining the required permits and/or permission from the City;

2. An order holding that the civil penalties assessed against Defendants are a debt

owed to the City and directing and ordering Defendants to pay the City the sum

of

the accrued penalties due from September 11, 2015 to the date the Property is

brought into compliance with the UDO;

3. All court costs and attorneys fees;

nd

4. Such other relief as the Court may deem just and proper.


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Ifi

ESPECTFULLY SUBMITTED this the \L day ofMarch, 2016

By:

By:

C IT Y O F A S H EV I LL E

OFFICE

O F C IT Y A T TO R NE Y

Robin

T Cumn

City Attorney

N C State B ar

No 17624

P O B ox 7148

Asheville,

North Carolina

288 2

Tele: 828 259-5610

Fax: 828 259-5475

[email protected]

atherineA Hofinann

Assistant CityAttorney

N C State Bar No 46118

P

O Box

7148

Asheville, North

Carolina 288 2

Tele: 828 259-5610

Fax: 828 259-5475

[email protected]


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CERT IF ICATE OF SERVICE

This is to certify that the foregoing City ofAsheville s Motionfo r Default Judgment as to

Defendants Lydia D. Scott

and

Asheville Recovery Group

and

in the Alternative Motion

fo r

Summary Judgment as to Defendants Lydia D. Scott an d Asheville Recovery Group has been

duly served by depositing a copy

of

the same in the United States Mail first-class postage

prepaid to the following:

Gerald D. Scott Jr.

22

Brucemont

Circle

Asheville NO

288 6

Lydia D. Scott

Brucemont

Circle

Asheville NO

288 6

Asheville Recovery Group

c/o Lydia Scott

22

Brucemont

Circle

Asheville NC 288 6

This

the

4

day

of

March 2016.

By:

5

C IT Y O F A S HE V IL L E

OFJPICB OF CITY

ATTORNEY

. Currm

motion for default

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