ROBERTA W. PENN
v . New Hanover County
No. 04 CVS 4220
TOWN OF WRIGHTSVILLE BEACH,
NORTH CAROLINA; TOWN OF
WRIGHTSVILLE BEACH, NORTH
CAROLINA BOARD OF ALDERMEN;
and JOHN S. CAREY, CHIEF,
WRIGHTSVILLE BEACH POLICE
Dillow, McEachern & Associates, P.A., by Mary Margaret
McEachern and Robert E. Dillow, Jr., for petitioner-appellant.
Wessell & Raney, LLP, by John C. Wessell, III, for respondents-appellees.
Petitioner (Roberta Penn) appeals judgment entered after the Superior Court affirmed the Wrightsville Beach Board of Aldermen's determination that petitioner's pit bull terrier is a potentially dangerous dog as defined in N.C. Gen. Stat. § 67-4.1(a)(2)(c)(2005). We affirm.
The relevant facts may be summarized as follows: On 30 August 2004, a 5 year old child, hereinafter Carly, was riding her bicycle in the vicinity of property owned by petitioner at 803Schloss Street in Wrightsville Beach, North Carolina. Carly was accompanied by her mother, Karen Carter, and a young friend who were also riding bicycles. Carly and her friend approached petitioner's property and began talking with her. Petitioner's 38-39 pound pit bull terrier, C.C., ran from her garage toward Carly and bit her on her left foot. Carter then ran to Carly as petitioner retrieved C.C. and brought her back into the yard. The bite did not result in hospitalization or an evaluation by a physician.
On 13 September 2004, Chief of Police John S. Carey made a determination pursuant to the provisions of § 91.29 of the Wrightsville Beach Code of Ordinances that [petitioner's dog] was a potentially dangerous dog as defined in N.C.G.S. § 67-4.1(a)(2). The Wrightsville Beach Board of Aldermen upheld Chief Carey's determination. Petitioner then filed a petition to the superior court for review de novo.
The trial court found, in pertinent part that:
1. On August 30, 2004, a 5 year old child, Carly Carter (herein Carly), was riding her bicycle in the vicinity of property owned by Ms. Roberta Penn at 803 Schloss Street, Wrightsville Beach, North Carolina. Carly was accompanied by her mother, Karen Carter, and by a young friend, Paige Scott.
2. As Carly approached the property of Ms. Penn, Ms. Penn's pit bull terrier C.C. ran from Ms. Penn's garage toward Carly and bit Carly on her left foot.
3. At the time C.C. bit Carly, Carly was in the street right-of-way of Schloss Street and not on Ms. Penn's property.
4. C.C., in running from Ms. Penn's property toward Carly, approached Carly in a vicious or terrorizing manner in an apparent attitude of attack.
5. The bite inflicted by C.C. on Carly did not result in broken bones or disfiguring lacerations and did not require cosmetic surgery or hospitalization. Carly was not taken to a hospital or a physician for treatment following the bite.
Consequently, the trial court concluded, in pertinent part, that:
9. The actions of the dog C.C. in chasing and then biting Carly in the manner described hereinabove constitute an approach by the dog C.C. to a person not on the owner's property in a vicious or terrorizing manner in an apparent attitude of attack.
10. The pit bull terrier owned by Ms. Roberta Penn named C.C. is hereby found to be a potentially dangerous dog as that term is
defined in N.C.G.S. § 67-4.1(a)(2).
From this judgment petitioner now appeals, contending, inter alia, that the trial court's findings of fact were not supported by competent evidence. We disagree.
At the outset, we must determine our standard of review. That standard of review will depend upon the nature of the error alleged in the petition for judicial review. If errors of law are alleged, our review is de novo. If the alleged error is that the final agency decision is not supported by the evidence, we employ the whole record test. Here, although the petition for judicial review alleges certain errors of law, the crux of the petition focuses on whether the SPC's final decision was supported by substantial evidence. Accordingly, the appropriate standard of review is the whole record test. That test requires us to examine the administrative record and determine whether it contains substantial evidence to support the agency's decision.
Curtis v. N.C. Dep't of Transp., 140 N.C. App. 475, 478, 537 S.E.2d 498, 501, (2000) (internal quotation marks and citations omitted).
G.S. § 67-4.1(a)(2)(c) provides, in pertinent part, that a:
[p]otentially dangerous dog means a dog that the person or Board designated by the county or municipal authority responsible for animal control determines to have . . . [a]pproached a person when not on the owner's property in a vicious or terrorizing manner in an apparent attitude of attack.
In the instant case, the record evidence reveals that on the day in question, Carly and a young friend were riding bicycles in the vicinity of the Penn's home at 803 Schloss Street, Wrightsville Beach, North Carolina. Carter, Carly's mother, testified that all of a sudden I heard a dog barking and then the next thing I heard was a scream and . . . I saw C.C. in the street with my daughter's foot in her mouth. Carter also stated that her daughter was hysterical and her foot was scraped and bruised. In addition, while Carter was looking down Schloss Street during the time the events were taking place, she never lost sight of Carly. The record also shows that Carly was in Schloss Street when she was bitten by the dog as illustrated on an exhibit. In addition, petitioner testified on cross-examination that the dog ran out from under her garage and grabbed Carly's foot in her mouth. Therefore, as sufficient evidence exists to support the trial court's findings, this assignment of error is overruled.
In petitioner's next argument on appeal she contends G.S. § 67-4.1 is unconstitutional as applied in the instant case.
In order to preserve a question for appellate review, a party must have presented to thetrial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.
N.C. R. App. P. 10(b)(1). Petitioner did not raise this issue before the trial court and we, therefore, do not address it.
We have evaluated petitioner's remaining arguments on appeal and conclude they are without merit.
Judges GEER and JACKSON concur.
Report per Rule 30(e).
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