ASHEVILLE, N.C. (828newsNOW) —
The Society of Historical Preservation of the 26th North Carolina Troops is gearing up for another fight with the city of Asheville and Buncombe County over the removal of the Vance Monument from Pack Square Park.
The North Carolina Supreme Court in March upheld the city’s removal of the Confederate monument to former Gov. Zebulon Vance.
Despite that loss, the group is trying again.
City officials said Tuesday they were aware of the latest lawsuit.
“The city has not yet been served, but does have a copy of it and review of the materials is underway. We intend to move quickly to file a motion requesting that the court dismiss this suit and prevent future repetitive filings,” city attorney Brad Branham said in a statement Tuesday afternoon.
According to court documents obtained by 828newsNOW, the preservation group is being represented by H. Edward Phillips III. Efforts to reach Phillips for comment were unsuccessful. Efforts to reach the Society of Historical Preservation of the 26th North Carolina Troops have also been unsuccessful.
The latest lawsuit restates the society’s claim that the $138,447.38 payment it made to the city for repairing the monument should be seen as a contract that the city broke by removing the statue.
The state’s highest court shot down that argument in March 2024.
“For the reasons stated herein, we reverse the Court of Appeals’ determination that plaintiff’s breach of contract claim should be dismissed for lack of standing. However, plaintiff abandoned the merits of its breach of contract claim in its appeal to this Court. Therefore, plaintiff has failed to assert any ground for which it has standing to contest removal of the monument, and we affirm the portion of the Court of Appeals’ decision affirming the trial court’s dismissal of plaintiff’s claims for a temporary restraining order, a preliminary injunction, and a declaratory judgment,” court documents read.
LEGAL DELAYS ADD $99,401 TO VANCE MONUMENT REMOVAL TAB
City officials said they intended to continue with plans for reimagining Pack Square Park.
“The city maintains its position that the North Carolina Supreme Court upheld the city’s right to remove the monument by way of its March 22, 2024, unanimous decision rejecting the plaintiff’s appeal. That decision cleared a path for the city and community to move forward with a new vision for Pack Square. Our intention is to continue the process to implement that vision until or unless another court ruling dictates otherwise,” Branham said.
No timeframe has been given for the work at Pack Square Park. The project became bogged down in March when a motion to select a contractor stalled.
DEBATE OVER LOCAL PREFERENCE IN CONTRACTING DELAYS PROJECT
Timeline in the legal action, according to court documents:
December 1897: The cornerstone was laid for the monument dedicated to Vance in Asheville’s Pack Square Park.
2008: The monument was in disrepair and at risk of structural instability because of mortar loss and water incursion. The Society of Historical Preservation of the 26th North Carolina Troops raised $138,447.38 for restoring it.
March 30, 2015: The Society of Historical Preservation of the 26th North Carolina Troops executed an agreement with the city of Asheville to “purchase and conduct the restoration of the Vance Monument … and donate said Restoration to [defendant City] upon completion of the work.”
December 2020: The Buncombe County Board of Commissioners and the Asheville City Council voted to remove the monument.
March 23, 2021: The Society of Historical Preservation of the 26th North Carolina Troops filed a complaint against Asheville and Buncombe County seeking to prevent removal of the monument.
March 29, 2021: The city of Asheville filed a motion to dismiss the complaint.
March 31, 2021: The Society of Historical Preservation of the 26th North Carolina Troops filed a motion to stay proceedings pending the court’s resolution of United Daughters of the Confederacy, N.C. Div. v. City of Winston-Salem, 383 N.C. 612 (2022).
April 30, 2021: The trial court denied the plaintiff’s motion to stay proceedings and the city’s motion for attorney’s fees and granted the city’s motion to dismiss.
NOTE: At the Court of Appeals, plaintiff failed to meet procedural deadlines governing the filing of the record on appeal and the filing of its appellant brief.
August 23, 2021: More than three months after the appeal was docketed — plaintiff filed a “motion for stay of appellate proceedings,” reiterating its argument that the matter should be stayed pending this Court’s resolution of United Daughters because “[t]he issues raised in the present case are identical.” The city opposed the motion and moved to dismiss plaintiff’s appeal based upon plaintiff’s repeated violations of the Rules of Appellate Procedure. The Court of Appeals denied plaintiff’s motion for stay and defendant City’s motion to dismiss the appeal.
April 5, 2022: The Court of Appeals issued an opinion affirming the trial court’s order. However, in addition to determining that dismissal of plaintiff’s breach of contract claim pursuant to Rule 12(b)(6) was proper, the Court of Appeals also concluded that plaintiff had no standing to bring its breach of contract claim — a conclusion the trial court never made.
Dec. 13, 2022: The court allowed plaintiff’s petition for discretionary review to consider whether the Court of Appeals erred in affirming the trial court’s dismissal of plaintiff’s complaint.
