STATE OF NORTH CAROLINA

FILED

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

COUNTY OF BUNCOMBE

15-CVS-4669

im MAR - ! P 2: 3 I
CITY OF ASHEVILLE, a North

Carolina Municipal CorporationBUNG ..... -i ^ J.. C

Plaintiff,

' BY_

V.

jify OF ASHEVILLE'S MOTION FOR

itEFAULT JUDGMENT AS TO

DEFENDANTS. LYDIA D. SCOTT AND

ASHEVILLE RECOVERY GROUP. AND IN
THE ALTERNATIVE. MOTION FOR

GERALD D. SCOTT, JR. and wife

SCOTT, and ASHEVILLE
RECOVERY GROUP, a North Carolina

SUMMARY JUDGMENT AS TO

DEFENDANTS, LYDIA D. SCOTT AND

ASHEVILLE RECOVERY GROUP

Non-Profit Corporation,
Defendants.

NOW 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 the 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

^On February 26, 2016, Defendant Gerald D. Scott, Jr. filed and signed a "Motion to Set Aside
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.

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
contemporaneously with this Motion and is incorporated herein by reference.
WKDEREFORE, 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 ordering Defendants 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 and attorneys' fees; and

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, 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 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; and

4.

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

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RESPECTFULLY SUBMITTED this the

Ifi

\L day of March, 2016

CITY OF ASHEVILLE
OFFICE OF CITY ATTORNEY

By:
Robin T. Cumn

City Attorney
NC State Bar No. 17624
P. O. Box 7148

Asheville, North Carolina 28802

Tele: (828) 259-5610

Fax: (828) 259-5475
rcurrin@ashevillenc.gov

By:
.atherine A. Hofinann

Assistant City Attorney

NC State Bar No. 46118
P. O. Box 7148

Asheville, North Carolina 28802

Tele: (828) 259-5610
Fax: (828) 259-5475

chofinann@ashevillenc.gov

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CERTIFICATE OF SERVICE

This is to certify that the foregoing City ofAsheville's Motionfor Default Judgment as to
Defendants, Lydia D. Scott and Asheville Recovery Group, and in the Alternative, Motion for
Summary Judgment as to Defendants, Lydia D. Scott and 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 28806

Lydia D. Scott
22 Brucemont Circle

Asheville, NO 28806

Asheville Recovery Group

c/o Lydia Scott
22 Brucemont Circle

Asheville, NC 28806

This the

day of March, 2016.

CITY OF ASHEVILLE

OFJPICB OF CITY ATTORNEY

By:
. Currm

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