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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
1. Animals--feral or wild--subject matter jurisdiction-_72-hour impoundment period
The trial court erred by concluding that it had subject matter jurisdiction over plaintiff's
claim under N.C.G.S. § 130A-192 asserting that defendant SPCA animal control facility was
causing unjustifiable physical pain, suffering, and death in its euthanization of feral cats without
holding them for seventy-two hours, because: (1) our General Assembly specifically designated
the administration and enforcement of N.C.G.S. § 130A-192 to either the Secretary of Health
and Human Services or a local health director and local health department; (2) plaintiff is unable
to file a complaint against defendant, a private nongovernmental agency, in the office of
administrative hearings; and (3) plaintiff failed to allege that defendant is a division of the local
health department.
2. Animals--feral or wild--subject matter jurisdiction-_animal cruelty
The trial court had subject matter jurisdiction under N.C.G.S. § 19A-2 over plaintiff's
claim seeking injunctive relief against defendant SPCA animal control facility alleging the cruel
treatment of animals as defined by N.C.G.S. § 192-1.
3. Animals--feral or wild--euthanization--animal cruelty--involuntary dismissal
The trial court erred by entering an involuntary dismissal under N.C.G.S. § 1A-1, Rule
41(b) for plaintiff's claim seeking injunctive relief against defendant SPCA animal control
facility
alleging the cruel treatment of animals, because: (1) the trial court's findings,
conclusions, and judgment are grounded in its interpretation of N.C.G.S. § 130A-192 which was
not properly before the trial court; and (2) the trial court failed to enter proper findings based on
the evidence presented that defendant's action of immediately euthanizing an animal as defined
by N.C.G.S. § 19A-1 does not constitute cruel treatment. On remand, the trial court should make
findings of fact and conclusions of law regarding whether plaintiff has presented sufficient
evidence to show defendant's use of a poke test to determine whether a cat is feral or tame and
defendant's subsequent immediate euthanization constitutes unjustifiable pain, suffering, or
death.
Judge LEVINSON concurring in part and dissenting in part.
Ward and Smith, P.A., by A. Charles Ellis; and William A.
Reppy, Jr., for plaintiff-appellant.
White & Allen, P.A., by David J. Fillippeli, Jr., and GregoryE. Floyd, for defendant-appellee.
TYSON, Judge.
Justice for Animals, Inc., (“plaintiff”) appeals from an Order
that granted Lenoir County SPCA, Inc.'s (“defendant”) motion for an
involuntary dismissal pursuant to Rule 41(b) of the North Carolina
Rules of Civil Procedure. We vacate portions of the trial court's
order, and reverse and remand in part.
The Animal Control Officer shall canvass the county to determine if there are any dogs or cats not wearing the required rabies vaccination tag. If a dog or cat is found not wearing the required tag, the Animal Control Officer shall check to see if the owner'sidentification tag can be found on the animal. . . . If the animal is not wearing an owner identification tag and the Animal Control Officer does not otherwise know who the owner is, the Animal Control Officer may impound the animal. The duration of the impoundment of these animals . . . shall not be less than 72 hours.
Plaintiff contends this statute requires defendant to impound all cats, tame or feral, for seventy-two hours prior to euthanization.
Ella Marie Harrell (“Harrell”), a former animal control officer for defendant, testified at trial regarding defendant's process for determining whether a cat was feral or “tame” when deciding to hold the animal or immediately euthanize it. She testified, “If it was a cat, when it was brought to the shelter they would go out with a pen, pencil, whatever and they would poke the animal. And, if the animal responded aggressively to the object, then they would say its wild, go put it down.” Harrell further testified that prior to arriving at the shelter, the “animal is very upset, very agitated, because normally they have not been ridden around in vehicles. And, occasionally you also have dogs that are in the back of that truck that are barking, and a cat's normal response is to become agitated around dogs.”
At the close of plaintiff's evidence, the trial court granted defendant's motion for an involuntary dismissal pursuant to Rule 41(b) of the North Carolina Rules of Civil Procedure. It found that the seventy-two hour impoundment period set forth in N.C. Gen. Stat. § 130A-192 “applies only to domestic felines and canines as defined in N.C. [Gen. Stat.] § 130A-184(2) and (4), respectively, and not to feral or wild animals.” The trial court further found that plaintiff offered no evidence, other than the fact thatdefendant immediately euthanizes feral cats prior to impounding them for seventy-two hours, to support their claim that defendant caused unjustifiable physical pain, suffering, and death to any animal. Plaintiff appeals.
The issue of whether a court has subject matter jurisdiction may be raised at any time during a proceeding, and the issue may be raised for the first time on appeal. Even if the parties did not raise the issue in their briefs, the court may raise the question of subject matter jurisdiction by its own motion. Further, the parties cannot stipulate to give a court subject matter jurisdiction where no such jurisdiction exists.
Northfield Dev. Co. v. City of Burlington, 165 N.C. App. 885, 887, 599 S.E.2d 921, 924 (2004) (citations omitted), disc. rev. denied, 359 N.C. 191, __ S.E.2d __ (Dec. 8, 2004) (495P04). Our General Assembly specifically designated the administration and enforcement of N.C. Gen. Stat. § 130A-192 to either the Secretary of Health and Human Services or a local health director and local health department. N.C. Gen. Stat. § 130A-4(a) (2003) provides:
(a) Except as provided in subsection (c) of this section, the Secretary shall administer and enforce the provisions of this Chapter and the rules of the Commission. A local health director shall administer the programs of the local health department and enforce the rules of the local board of health.
(b) When requested by the Secretary, a local health department shall enforce the rules of the Commission under the supervision of the Department. The local health department shall utilize local staff authorized by the Department to enforce the specific rules.
Further, N.C. Gen. Stat. § 130A-24 (2003) states:
(a) Appeals concerning the enforcement of rules adopted by the Commission, concerning the suspension and revocation of permits and program participation by the Secretary and concerning the imposition of administrative penalties by the Secretary shall be governed by Chapter 150B of the General Statutes, the Administrative Procedure Act.
(a1) Any person appealing an action taken by the Department pursuant to this Chapter or rules of the Commission shall file a petition for a contested case with the Office of Administrative Hearings as provided in G.S. 150B-23(a). The petition shall be filed not later than 30 days after notice of the action which confers the right of appeal unless a federal statute or regulation provides for a different time limitation. The time limitation imposed under this subsection shall commence when notice of the agency decision is given to all persons aggrieved. Such notice shall be provided to all persons known to the agency by personal delivery or by the placing of notice in an official depository of the United States Postal Service addressed to the person at the latest address provided to theagency by the person.
(b) Appeals concerning the enforcement of rules adopted by the local board of health and concerning the imposition of administrative penalties by a local health director shall be conducted in accordance with this subsection and subsections (c) and (d) of this section. The aggrieved person shall give written notice of appeal to the local health director within 30 days of the challenged action. The notice shall contain the name and address of the aggrieved person, a description of the challenged action and a statement of the reasons why the challenged action is incorrect. Upon filing of the notice, the local health director shall, within five working days, transmit to the local board of health the notice of appeal and the papers and materials upon which the challenged action was taken.
(c) The local board of health shall hold a hearing within 15 days of the receipt of the notice of appeal. The board shall give the person not less than 10 days' notice of the date, time and place of the hearing. On appeal, the board shall have authority to affirm, modify or reverse the challenged action. The local board of health shall issue a written decision based on the evidence presented at the hearing. The decision shall contain a concise statement of the reasons for the decision.
(d) A person who wishes to contest a decision of the local board of health under subsection (b) of this section shall have a right of appeal to the district court having jurisdiction within 30 days after the date of the decision by the board. The scope of review in district court shall be the same as in G.S. 150B-51.
In Justice for Animals, Inc. v. Robeson County, 164 N.C. App. 366, 358, 595 S.E.2d 773, 775 (2004), the plaintiffs filed a complaint alleging “the treatment of animals at the Animal Control Facility is cruel and unlawful under N.C. Gen. Stat. § 19A-1 et seq., § 130A-192, and § 14-360.” This Court held that theplaintiffs were “aggrieved persons” whose claims fell within the scope of N.C. Gen. Stat. § 130A-24(b). Id. at 370, 595 S.E.2d at 776-77. We affirmed the trial court's dismissal of the plaintiffs' complaint for failure to exhaust the administrative remedies available under N.C. Gen. Stat. § 130A-24(b) and failure to plead a basis for avoiding the exhaustion requirement. Id. at 373_, 595 S.E.2d at 777-78
“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.” In re from the Civil Penalty Assessed for Violations of the Sedimentation Pollution Control Act etc., 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Plaintiff here is the identical plaintiff in Justice for Animals, Inc., and alleged defendant violated N.C. Gen. Stat. § 130A-192, one of the statutes also at issue in Justice for Animals, Inc.
Portions of plaintiff's complaint seek injunctive relief against defendant to halt the destruction of animals for failure to wear the required rabies vaccination tags pursuant to N.C. Gen. Stat. § 130A-192, a statute contained within the Public Health Chapter. To the extent plaintiff's complaint alleges an action pursuant to this statute, it must seek administrative remedies, including its rights to appeal, against the local health department and local health director. Justice for Animals, Inc., 164 N.C. App. at 369, 595 S.E.2d at 775; N.C. Gen. Stat. § 130A-4(a); N.C. Gen. Stat. § 130A-24.
Plaintiff is unable to file a complaint against defendant, aprivate non-governmental agency, in the office of administrative hearings. The defendants in Justice for Animals, Inc., included the local board of health and its animal control divisions. As plaintiff failed to allege defendant is a division of the local health department, plaintiff's claim for relief under N.C. Gen. Stat. § 130A-192 is not proper against defendant. See N.C. Gen. Stat. § 130A-4(a).
Neither the trial court nor this Court has jurisdiction at this stage in the proceedings to address the issue of whether this defendant is required to hold all animals for seventy-two hours pursuant to N.C. Gen. Stat. § 130A-192. The trial court erred by finding “the 72-hour impoundment period set forth in N.C. [Gen. Stat.] § 130A-192 applies only to domestic cats and dogs as those terms are defined in N.C. Gen. Stat. § 130A-184(2) and (4), respectively, and not to feral or wild animals.” The trial court was without subject matter jurisdiction to enter findings or conclusions regarding plaintiff's claim for violations by defendant under N.C. Gen. Stat. § 130A-192. Enforcement of this statute is proper against the local board of health in the Office of Administrative Hearings. N.C. Gen. Stat. § 130A-4(a); N.C. Gen. Stat. § 130A-24. We vacate these portions of the trial court's order.
Plaintiff's complaint specifically alleges jurisdiction pursuant to N.C. Gen. Stat. § 19A-2. Further, its complaint alleges: “The killing of these cats, dogs, kittens, and puppies [by defendant] before the statutory seventy-two (72) hour impoundment period causes unjustifiable physical pain, suffering, and death.” Plaintiff's complaint prays the trial court to “permanently enjoin defendant, pursuant to N.C. Gen. Stat. § 19A-4, from killing any cats, dogs, kittens, or puppies before the expiration of the statutory seventy-two hour impoundment period for each such animal killed.” These allegations set forth a cause of action against defendant sufficient to establish subject matter jurisdiction for a claim of cruel treatment as defined in N.C. Gen. Stat. § 19A-1(2).
We recognize that defendant's actions, as well as its decision to either immediately euthanize animals or impound them, are guided by N.C. Gen. Stat. § 130A-192. As stated above, neither the trialcourt nor this Court has jurisdiction over plaintiff's claim regarding the interpretation, application, or enforcement of this statute as it relates to claims against the private party defendant. However, the trial court and this Court have subject matter jurisdiction over plaintiff's action to the extent plaintiff's complaint generally alleges an action for “unjustifiable pain, suffering, or death” to animals based on defendant's immediate euthanization of cats. N.C. Gen. Stat. § 19A-1(2) (2003).
The well-established rules regarding our review of a trial court's order dismissing an action are set forth in Miles v. Carolina Forest Ass'n, __ N.C. App. __, __, 604 S.E.2d 327, 331-32 (2004):
When a motion to dismiss pursuant to Rule 41(b) is made, the judge becomes both the judge and the jury; he must consider and weigh all competent evidence before him; and he passes upon the credibility of the witnesses and the weight to be given to their testimony. Dealers Specialties, Inc. v. Housing Services, 305 N.C. 633, 636, 291 S.E.2d 137, 139 (1982). In the absence of a valid objection, the court's findings of fact are presumed to be supported by competent evidence, and are binding on appeal. Id. A general exception to the judgment and an assignment of error that the court erred in entering the findings of fact and signing the judgment is a broadside assignment of error and does notbring up for review the findings of fact or the evidence on which they are based. Sweet v. Martin, 13 N.C. App. 495, 495, 186 S.E.2d 205, 206 (1972); Merrell v. Jenkins, 242 N.C. 636, 637, 89 S.E.2d 242, 243 (1955). Where the assignments of error are insufficient to present the findings of fact for review, the appeal presents the question of whether the findings support the court's inferences, conclusions of law, judgment, and whether error appears on the face of the record. Taney v. Brown, 262 N.C. 438, 443, 137 S.E.2d 827, 830 (1964).
Here, plaintiff failed to specifically object to any of the trial court's findings of fact. Our review turns to whether the trial court's findings of fact support its conclusions of law and judgment.
The trial court's unchallenged findings of fact, other than those portions vacated above, show “Plaintiff at trial offered no evidence, other than the fact that defendant immediately euthanizes feral or wild cats prior to impounding them for 72 hours, to support their claim that defendant has caused unjustifiable physical pain, suffering, or death to any animal.” The trial court also “found” that “[a]s plaintiff offered no evidence of cruel treatment or unjustifiable physical pain, suffering, or death otherthan its contention that defendant's euthanization of feral animals prior to impounding the same for 72 hours constitutes cruel treatment per se, defendant's [Rule 41(b)] Motion . . . should be granted.” We note this “finding” should be more appropriately labeled as a conclusion of law. See In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997) (determination requiring exercise of judgment or application of legal principles is a conclusion of law).
The trial court's findings, conclusions, and judgment are grounded in its interpretation of N.C. Gen. Stat. § 130A-192, which we have held was not properly before the trial court. Further, the trial court's conclusion that plaintiff failed to set forth facts or present evidence to support an allegation for cruel treatment of animals is based solely on its earlier interpretation of N.C. Gen. Stat. § 130A-192. We have already held these portions of the trial court's order to be erroneous and have vacated them accordingly.
Without these “findings,” the trial court has set forth no other basis to grant defendant's motion for an involuntary dismissal. The trial court erred by dismissing plaintiff's case without entering proper findings, based on the evidence presented, that defendant's action of immediately euthanizing an “animal,” as defined in N.C. Gen. Stat. § 19A-1, does not constitute “cruel treatment” as also defined in that statute. Without proper findings regarding the appropriate statutes at issue, the trial court's conclusions of law are unsupported.
Testimony presented at trial tended to show that defendant employs a “poke” procedure to determine whether to impound orimmediately euthanize an animal. On remand, the trial court should make findings of fact and conclusions of law regarding whether plaintiff has presented sufficient evidence to show defendant's use of the “poke” test to determine whether a cat is feral or tame and defendant's subsequent immediate euthanization constitutes “unjustifiable pain, suffering, or death.” N.C. Gen. Stat. § 19A- 1(2).
Vacated in part; Reversed in part and Remanded.
Judge BRYANT concurs.
Judge LEVINSON concurs in the result in part and dissents in part.
LEVINSON, Judge concurring in the result in part and
dissenting in part.
I concur only in the majority's conclusion that this mattermust be reversed and remanded. I dissent from those portions of
the majority opinion which purport to vacate, on subject matter
grounds, the portions of the trial court's order related to
N.C.G.S. § 130A-192 (2003).
I respectfully disagree with the majority opinion in three
important respects. First, I disagree with the majority's holding
that, if the plaintiff lacks standing to seek redress against this
defendant for the violation of G.S. § 130A-192, then the trial
court is without authority to consider that statute even if its
meaning and application are relevant to an issue in the case.
Secondly, this matter should be reconsidered by the trial court on
the central issue actually raised in the pleadings and tried before
it originally, not on an entirely different one identified by this
Court. Thirdly, the trial court, in its evaluation of the merits
of plaintiff's claim, materially relied upon a misinterpretation of
a relevant statute, such that the trial court's conclusion that
defendant's actions did not constitute “cruelty” cannot be
sustained.
Preliminarily, I observe that the majority opinion
unnecessarily addresses the issue of plaintiff's standing to bring
suit under G.S. § 130A-192. The discussion of standing arises from
the majority's erroneous premise that plaintiff herein brought a
lawsuit against defendant, a private nonprofit corporation, for
violation of G.S. § 130A-192, a statute applicable only to county
or other governmental entities. In fact, as the majority
acknowledges, plaintiff “filed a complaint pursuant to [N.C.G.S.]
§ 19A-1 et seq.,” alleging cruelty. Although plaintiff's complaintmakes some reference to G.S. § 130A-192, the gist of its claim is
that defendant inflicts unjustifiable pain, suffering, and death to
certain cats and dogs, by euthanizing them almost immediately after
they are received. Plaintiff sought to demonstrate or illustrate
the alleged cruelty by reference to defendant's failure to hold
these stray cats and dogs for even the bare minimum of 72 hours
that G.S. § 130A-192 requires of county animal shelters.
(See footnote 1)
However,
plaintiff did not bring suit under G.S. § 130A-192, so the
majority's extensive discussion of plaintiff's standing to bring
such a suit is wholly unnecessary.
A serious problem arises from the majority opinion's confusion
of a party's standing to bring suit under a statute against a
certain party with the court's authority to consider or interpret
the statute when it may be relevant to an issue before the court.
The majority opinion concludes that, because plaintiff lacked
standing to sue defendant SPCA under G.S. § 130A-192, “neither the
trial court nor this Court has jurisdiction . . . regarding the
interpretation” of the statute, and that the interpretation of G.S.
§ 130A-192 “was not properly before the trial court.” The majority
cites no authority for its holding that a court may not utilize its
interpretation of a statute unless it provides a cause of action
for the plaintiff. A plaintiff's lack of standing to challenge a
statute does not deprive the court of authority to interpret thestatute. And, of course “[i]t is permissible in the interpretation
of statutes to consider other statutes related to the particular
subject, or to the statutes under construction.” Davidson County
v. City of High Point, 85 N.C. App. 26, 34, 354 S.E.2d 280, 284
(1987) (citing Abernethy v. Board of Comm'rs, 169 N.C. 631, 86 S.E.
577 (1915)). In holding that neither the trial court nor this
Court had the authority to interpret the scope of G.S. § 130A-192,
the majority is in error. Accordingly, I dissent from that portion
of the majority opinion that purports to vacate, on lack of subject
matter jurisdiction grounds, the findings of fact and conclusions
of the trial court “regarding plaintiff's claim for violations by
defendant under N.G. Gen. Stat. § 130A-192.”
Further, in my opinion, it is essential to address the meaning
of G.S. § 130A-192 inasmuch as the trial court rested its decision,
in large part, on its interpretation of the statute. The
interpretation of the statute is relevant to plaintiff's claim
because the fact (if proven) that defendant fails to adhere to the
minimum standards applicable to county agencies is some evidence of
whether “unjustifiable . . . death is caused or permitted[]” by
defendant. See N.C.G.S. § 19A-1(2)(defining “cruelty”).
Turning to the meaning of G.S. § 130A-192, the trial court
erred in its interpretation of this statute. The trial court judge
concluded that the requirement of G.S. § 130A-192, that dogs and
cats without rabies tags be held at least 72 hours before being
killed, was applicable only to “tame” cats and not to “wild” or
“feral” cats. The court based its ruling on the definitions in
N.C.G.S. § 130A-184 (2003), of animals subject to rabies controlmeasures. The statute states that “'cat' means a domestic feline,”
and that “'dog' means a domestic canine.” The correct
interpretation of this is that “domestic cat” and “domestic dog”
are delineating which species of animals are within the ambit of
the statute. That this is the correct interpretation is
immediately apparent when one considers the following: The 72 hour
hold is one small item in a comprehensive rabies control statute,
which applies the same definitions to all statutes in the rabies
control section. Consequently, if stray dogs and cats are excluded
from the provisions of G.S. § 130A-192, then they are also excluded
from the rest of the rabies section. In that event, the animal
control officer would have no authority to take crucial measures to
reduce the spread of rabies _ a truly absurd interpretation and
application of the statutes. See, e.g., N.C.G.S. § 130A-195
(“Destroying stray dogs and cats in quarantine districts”);
N.C.G.S. § 130A-197 (“Infected dogs and cats to be destroyed”);
N.C.G.S. § 130A-199 (“Rabid animals to be destroyed”); N.C.G.S. §
130A-200 (“Confinement or leashing of vicious animals).
Finally, the majority opinion instructs the trial court to
enter findings and conclusions on remand regarding whether a “poke
test” that defendant purportedly employed to decide whether a cat
is a house pet or a stray “feral” animal constitutes “cruel
treatment.” The “poke test” was neither the basis of plaintiff's
claim, nor the basis of the trial court's ruling. I emphasize that
plaintiff's claim is premised on a claim that defendant inflicts
unjustifiable pain, suffering, and death to certain cats and dogs
by euthanizing them almost immediately after they are received. During oral argument before this Court, both parties agreed that
this case does not implicate the question of whether the “poke
test” constitutes “cruelty”. This inquiry, now required by
operation of the majority opinion, is simply not relevant to a
determination of plaintiff's claim _ except as it may collaterally
help establish that defendant, indeed, failed to hold all cats for
a certain period.
In short, the trial court's incorrect interpretation of G.S.
§ 130A-192 materially impacted its determination on the ultimate
issue before it, and requires remand for the court to utilize the
correct interpretation in its consideration of plaintiff's claim
that the defendant caused unjustifiable pain, suffering, and death
to certain animals by its failure to hold all cats for some minimum
period. In making its ultimate determination on the merits, the
judge may consider as some evidence not only the fact that our
legislature generally requires county entities to hold all cats for
72 hours, G.S. § 130A-192, but also a host of other statutory
provisions that may be relevant. See, e.g., G.S. § 130A-197 and
G.S. § 130A-199.
For all the foregoing reasons, I would reverse and remand for
the entry of a new order by the trial court, leaving in its
discretion whether to receive additional evidence
.
Footnote: 1
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