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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.
JUSTICE FOR ANIMALS, INC., Plaintiff, v. LENOIR COUNTY SPCA,
Filed: 1 February 2005
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
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
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
Judge LEVINSON concurring in part and dissenting in part.
Appeal by plaintiff from order entered 18 August 2003 by Judge
Elizabeth A. Heath in Lenoir County District Court. Heard in the
Court of Appeals 23 September 2004.
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.
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.
Plaintiff filed a complaint pursuant to N.C. Gen. Stat. § 19A-
1, et. seq., seeking injunctive relief and asserting defendant was
causing unjustifiable physical pain, suffering, and death in its
euthanization of animals. Plaintiff alleged that defendant's
practice of euthanizing feral cats without holding them for
seventy-two hours is unjustifiable because it violates N.C. Gen.
Stat. § 130A-192. Webster's New Collegiate Dictionary provides
several definitions for 'feral' including: 'wild animal' and
'having escaped from domestication and become wild.' Malloy v.
Cooper, 162 N.C. App. 504, 509, 592 S.E.2d 17, 21 (quoting
Webster's New Collegiate Dictionary 456 (9th ed. 1991)), disc. rev.
denied, 358 N.C. 376, 597 S.E.2d 133 (2004). N.C. Gen. Stat. §
130A-192 (2003) permits the euthanization of animals after a
minimum seventy-two hour impoundment, if the animal is not claimed
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
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 issues on appeal are: (1) whether the trial court had
subject matter jurisdiction over plaintiff's claims against
defendant; and (2) whether the trial court erred by granting
defendant's motion for an involuntary dismissal.
III. Subject Matter Jurisdiction
A. N.C. Gen. Stat. § 130A-192
 In its complaint, plaintiff alleged that defendant's
practice of euthanizing feral cats without holding them for
seventy-two hours is unjustifiable because it violates N.C. Gen.
Stat. § 130A-192. Its complaint states, The killing of these
cats, dogs, kittens, and puppies before the statutory seventy-two
hour impoundment period causes unjustifiable physical pain,
suffering, and death. The threshold issue is whether the trial
court had subject matter jurisdiction over plaintiff's claim.
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)
(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
(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
(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
B. N.C. Gen. Stat. § 19A-1.1
 The trial court has subject matter jurisdiction pursuant
to N.C. Gen. Stat. § 19A-2 over plaintiff's claim to the extent it
seeks an injunction against defendant by alleging the cruel
treatment of animals, as defined in N.C. Gen. Stat. § 19A-1. Wenote that N.C. Gen. Stat. § 19A-1.1 sets forth several exemptions
regarding the ability to seek a remedy under the provisions of
Chapter 19A. Specifically, N.C. Gen. Stat. § 19A-1.1(5) (2003)
states that this Article, Civil Remedy for Protection of Animals,
shall not apply to the lawful destruction of any animal for the
purposes of protecting the public, other animals, or the public
health. This statute, however, was enacted during the 2003
session of the legislature and was not effective until 19 June
2003. As this action was filed prior to the effective date of N.C.
Gen. Stat. § 19A-1.1, its exceptions do not apply to the case at
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. §
IV. Standard of Review
 As the trial court had jurisdiction over plaintiff's
allegations of cruelty pursuant to N.C. Gen. Stat. § 19A-1, our
review turns to whether the trial court erred in entering an
involuntary dismissal pursuant to Rule 41(b) of the North Carolina
Rules of Civil Procedure.
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
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
V. Civil Remedy for Protection of Animals
N.C. Gen. Stat. § 19A-1(1) (2003) defines animals as every
living vertebrate in the classes Amphibia, Reptila, Aves, and
Mammalia except human beings. This broad definition clearly
includes both feral and tame cats. The statute further defines
cruelty and cruel treatment as every act, omission, or neglect
whereby unjustifiable physical pain, suffering, or death is caused
or permitted. N.C. Gen. Stat. § 19A-1(2).
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-
Both the trial court and this Court lack subject matter
jurisdiction over plaintiff's claim against defendant for violating
N.C. Gen. Stat. § 130A-192. The portions of the trial court's
order that seek to interpret and apply this statute against
defendant are vacated. Plaintiff has standing to bring against,
and the trial court has subject matter jurisdiction over, defendant
pursuant to N.C. Gen. Stat. § 19A-1-4. The trial court failed to
make proper findings under Article I of the Protection of Animals
statutes. N.C. Gen. Stat. § 19A-1-4. The trial court's order is
vacated in part and reversed in part. This case is remanded for
Vacated in part; Reversed in part and Remanded.
Judge BRYANT concurs.
Judge LEVINSON concurs in the result in part and dissents in
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
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)
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
The definition of cruelty includes every act, omission,
or neglect whereby unjustifiable . . . death is caused or
permitted. G.S. § 19A-1(2).
Thus, even in the absence of the
72-hour provision in G.S. § 130A, the trial court would be
obligated to determine whether failure to hold all cats for 72
hours constituted cruelty.
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